Flashcards
(170 cards)
1
Q
4 intentional torts involving personal injury:
A
(1) Battery
(2) Assault
(3) Intentional Infliction of Emotional Distress
(4) False Imprisonment
2
Q
A D acts intentionally if he acts:
A
(1) with the purpose of causing the consequence of his act; OR
(2) Knowing that the consequence is substantially certain to result
3
Q
IIED
A
D intentionally or recklessly engages in extreme and outrageous conduct that causes the P severe emotional distress
4
Q
What is extreme and outrageous conduct?
A
COnduct that exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society
5
Q
Standard for Public Figures to claim IIED:
A
Must show that the words contain a false statement of fact that was made with actual malice
6
Q
Actual Malice
A
With knowledge that a statement was false or with reckless disregard of its potential falsity
7
Q
2 main situations when a third party can sue a D for IIED over conduct intended towards a different party:
A
(1) Related Bystanders - An immediate family member of the victim who is rpresent at the time of conduct and contemopraneously perceives the conduct
(2) Defendant’s Purpose - If the D’s purpose in harming an individual is to cause severe emotional distress to a third party
8
Q
3 Elements of False Imprisonment:
A
(1) D intends to confine or restrain another within fixed boundaries
(2) The actions (or inactions) directly result in confinement; and
(3) P is concious of the confinement or harmed by it
9
Q
Shopkeeper’s Privilege Exception to False Imprisonment
A
A merchant can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter
10
Q
2 situations when an initial aggressor can claim self-defense:
A
(1) after properly withdrawing from a confrontation
(2) if the other party has responded to nondeadly force with deadly force
11
Q
Defense of Others Defense
A
May use reasonably force in defense of others if that person would be entitled to use self-defense
12
Q
Parental Discipline Defense
A
Parents may use reasonable force as necessary to discipline children
13
Q
7 Defenses to Intentional Torts:
A
(1) Actual Consent
(2) Implied Consent
(3) Self-Defense
(4) Defense of Others
(5) Defense of Property
(6) Parental Discipline
(7) Privilege of Arrest
14
Q
Is consent a valid defense if consent is mistakenly given?
A
YES, unless the D caused the mistake or knew of it and took advantage
15
Q
Is consent a valid defense if the consent is fraudulently induced?
A
No, if the fraud goes to an essential matter. If the fraud only goes to a collateral matter, consent is still a valid defense?
16
Q
Is a person acting in self defense liable for injury to bystanders?
A
NO, as long as the injury was accidental and the actor was not negligent toward the bystander
17
Q
Can reasonable force be used to reclaim personal property that has been wrongfully taken?
A
Yes, but only if you first request its return, unless that would be futile.
*If the original taking was lawful (like a bailment) then only peaceful means may be used
18
Q
What level of force can be used to regain possession of land?
A
Common Law: Reasonable force permitted
Modern Rule: Use of force is no longer permitted–only legal process
19
Q
When is a private citizen permitted to use reasonable force to make an arrest?
A
(1) A felony has actually been committed
(2) The arresting party has reasonable grounds to suspect that the person being arrested has committed the felony
20
Q
When can a police officer make an arrest?
A
Must reasonably believe that a felony has been committed and that the person arrested committed it.
21
Q
Is an officer who makes a mistake as to whether a felony has been committed subject to tort liablity?
A
NO
22
Q
4 intentional torts involving harms to personal property and land
A
(1) Tresspass to Chattels
(2) Conversion
(3) Tresspass to Land
(4) Nuisance
23
Q
Tresspass to Chattels
A
An intentional interference with the P’s right to possess property by: (i) dispossessing the P of the chattel; (ii) using or intermeddling with the P’s chattel, or (iii) damaging the chattel
24
Q
What damages can be recovered for trespass to chattels?
A
Dispossession or Damage: May recover actual damages, damages resulting from the loss of use, nominal damages, or the cost of repair
Use/Meddling: May only recover actual damages
25
What is Conversion?
Intentionally committing an act depriving the P of possession of his chattel or interfering with the P's chattel in a manner so serious as to deprive the P entirely of the use of the chattel
26
The more extreme the interference, the more likely the court will find ________ than _________.
Conversion; Trespass to Chattels
27
5 factors courts consider when determining if an action was a conversion or trespass to chattels:
(1) The duration and extent of the interference
(2) D's intent to assert a right inconsistent with the rightful possessor
(3) D's good faith
(4) Expense or inconvenience to the P
(5) Extent of the harm
28
Necessity Defense to Trespass (to Land):
Generally available to a person who enterse onto someone else's land or interferes with that individuals personal property to prevent injury or other severe harm
29
Private Nuisance
An activity that substantially and unreasonably interferes with another's use and enjoyment of land
30
2 main defenses to private nuisance:
(1) Compliance with state or local administrative regulations
(2) "Coming to the nuisance" - courts are hesitant to find a nuisance if you moved somewhere knowing about that conduct
31
Public Nuisance
An unreasonable interference with a right common to the public as a whole
32
Who can bring an action for public nuisance?
Generally, just a public official.
Private individuals can bring a public nuisance claim ONLY if the P suffered special harm that is different from the general public.
33
4 elements of Negligence:
(1) Duty
(2) Breach
(3) Causation
(4) Damages
34
Are rescuers foreseeable victims of negligent conduct?
YES. A person who comes to the aid of another is a foreseeable victim of the original negligent conduct
"danger invites rescue"
35
Are crime victims considered foreseeable plaintiffs of negligence?
Potentially, in certain circumstances
Ex: A train negligently takes a passenger past his stop and drops him in a high crime area. The railroad may be liable in tort if that passenger beomes a victim of crime
36
Generally, there is no affirmative duty to help others, but there are 4 exceptions:
(1) Assumption of Duty - Voluntary undertaking: a person who voluntarily aids or rescues another has a duty of reasonable care in the performance of that aid or rescue.
(2) Placing another in danger
(3) By Authority - A person with the ability and actual authority to control another has a duty to exercise reasonable control
(4) By Relationship: D has a special relationship with the P (eg. common carrier-passenger or innkeeper-guest)
37
What is the standard of care for negligence claims generally?
Reasonably prudent person under the circumstances
38
3 Modified Standards of Care for Negligence:
(1) Physical Characteristics - Particular physical characteristics are taken into account; D is compared with a reasonably prudent person with like characteristics
(2) Involuntary Intoxication
(3) Children - Reasonable child of similar age, intelligence and experience (UNLESS the child is engaged in high-risk adult activities)
39
Standard of Care for Common Carriers
Traditional Rule: Utmost Care---highest duty of care consistent with the practical operation of the business
Modern/Minority Trend: No higher standard; liable only for ordinary negligence
40
Standard of Care for Innkeepers:
Traditional Rule: Utmost Care---highest duty of care consistent with the practical operation of the business
Modern/MAJORITY Rule: Liable only for ordinary negligence (not a higher standard)
41
What is a bailment?
When a bailee temporarily takes possession of another's (the bailor's) property
42
Standard of Care in a Bailment:
Bailor: Must warn a gratuitious bailee of known dangerous conditions.
If a bailor receives the SOLE BENEFIT, then the bailee has a LESSER DUTY.
If the bailee receives a benefit, then he has a HIGHER DUTY of care; even slight negligence can result in liability.
43
Invitee v. Licensees v. Trespassers
Invitee: Someone who comes onto the land for a material or economic purpose
Licensee: Enters the land with express of implied permission (social guests)
Trespassers: Someone on the land without consent or privilege
44
What is a landowners duty of care to invitees?
Reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee.
*NON-DELEGABLE DUTY: Cannot avoid the duty by assigning care of the property to an independent contractor.
45
What is a landowners duty of care to Licensees?
Either (1) make the property reasonably safe, or (2) warn licensees of hidden dangers
*No duty to inspect for dangers
46
What is a landowner's duty of care to trespassers?
Undiscovered Trespassers: No duty, except to refrain from willful, wanton, intentional, or reckless conduct
Discovered/Anticipated Trespassers: Duty to warn or protect from hidden dangers.
47
What is a landowner's duty of care under the California/Minority approach?
Basically just reasonable care under all circumstances for all entrants.
48
Under the Attractive Nuisance Doctrine, a landowner may be liable for injuries to children trespassing on the land if: (5 conditions)
(1) An artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass
(2) The land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or SBH
(3) The children do not discover or cannot appreciate the danger
(4) The utility of maintaining the condition is slight compared to the risk of injury; AND
(5) The land possessor fails to exercise reasonable care
49
3 duties of a LL to the tenant regarding negligence:
(1) Maintain safe common areas
(2) warn of hidden dangers (especially for premises that are leased for public use); and
(3) Repair hazardous conditions
50
(T/F) In most jurisdictions, automobile drivers owe a duty of reasonable care to their guests and passengers
TRUE
51
Are customs evidence of a breach?
Generally: Evidence of a custom is admissable, but not dispositive
BUT FOR PROFESSIONALS (lawyers, doctors, accountants, electricians): Custom is admissible AND dispositive
52
5 situations when a doctor isn'y required to explain the risks of a medical procedure:
(1) The risks are commonly known
(2) The patient is unconscious
(3) The patient waives/refuses the informatin
(4) The patient is incompetent
(5) The patient would be harmed by the disclosure (eg it would cause a heart attack)
53
What is negligence per se?
When a law or statute establishes a particular standard of care, violation of the law constitutes a breach
54
5 elements of negligence per se:
(1) A criminal law or regulatory statute imposes a particular duty for the protection or benefit of others
(2) D violated the statute
(3) P must be in the class of people intended to be protected by the statute
(4) The accident must be the type of harm that the statute was intended to protect against
(5) The harm was caused by a violation of the statute
55
5 ways a D can use "excuse" as a defense to negligence per se:
(1) D may show that complying with the statute would be even more dangerous than violating the statute
(2) Compliance was impossible or an emergency justified violation of the statute
(3) Incapacity (physical disability)
(4) Excercised reasonable care in trying to comply
(5) Vagueness
56
What is the procedural effect of the application of res ipsa loquitur?
Creates a permissible inference that allows the case to go to the jury
57
3 elements of Res Ipsa Loquitur:
(1) The accident was of a kind that does not ordinarily occur in the absense of negligence
(2) It was caused by an agent or instrumentality within the exclusive control of the D
(3) It was not due to any action on the part of the P
58
3 situations when we prob will have to look beyond the "but for" test for actual causation
(1) Multiple tortfeasers
(2) Multiple possible causes
(3) Loss of Chance
59
Regarding alternative causation, when the P's harm was caused by only one of 2 negligent Ds, but it is not clear which one, courts will:
Shift the burden of proof to the Ds and impose J&S liability on both unless one can show that he did not cause the harm
60
If two or more tortfeasers were acting collectively together and that causes the P's harm, then:
All defendants will be jointly and severally liable
61
What is the Loss of Chance of Recovery doctrine for proving actual causation in medical malpractice cases?
If a physician negligently reduces the P's chance of survival, then that P can recover for the lost chance of recovery.
NOTE: P's cannot recover full damages; but can recover the portion that represents their lost chance of survival.
62
Proximate Causation
Person is liable for the kinds of risks that made her conduct negligent. The issue is whether the injury that occurred was within the scope of the D's breach.
63
Under Proximate Causation, the _________ of damages must be foreseeable, but not the ________.
Type; Extent
The D is liable for the full extent of the P's injuries, even if the extent is unusual or unforeseeable.
64
What is the purpose of actual/compensatory damages?
TO make the P whole again
65
Explain the Traditional Rule and Modern Trend regarding the Collateral-Source Rule
Traditional Rule: Benefits or payments to the P from outside sources are not credited against the liability of any tortfeasor.
Modern Trend: Most statues have passed statutes that eliminate or substantially modify the collateral source rule to avoid double recovery
66
When might punitive damages be available?
If the D acted willfully, wontonly, recklessly, or with malice
*NOT negligently.
67
The availability of punitive damages may be limited by statute. What is the main statute/rule to be aware of?
Punitive damages must be within a sing-digit ratio of any compensatory damages.
68
What are parasitic damages?
Damages for emotional distress that accompany a physical injury
69
To claim NIED, most jurisdictions require:
Some physical manifestation of distress (such as nausea, insomnia, miscarriage)
70
3 Specific Circumstances when Ps can recover for NIED:
(1) Zone of Danger
(2) Bystander Recovery
(3) Special Relationship
71
Zone of Danger NIED Requirements
The P was within the "zone of danger" of the threatened physical impact and the threat of physical impact caused emotional distress
72
Bystander Recovery NIED Requirements:
(1) Bystander is closely related to the person injured by the D
(2) Bystander was present at the scene of the injury
(3) Bystander personally observed the injury
73
Special Relationship NIED - 2 Main Examples
(1) Negligent mishandling of a corpse
(2) Negligent medical information (eg a negligent misdiagnosis)
74
(T/F) A P who suffers only economic loss without any related personal injury or property damage cannot recover in negligence
TRUE
75
What is Loss of Consortium?
ALlows recovery for loss arising from injury to a family member.
Family members (typically a spouse) can claim loss of consortium or companionship
76
Survival Action v. Wrongful Death Action
SURVIVAL ACTION: Brought by a representative of the decedent's estate on behalf of the decedent for claims that the decedent would have had at the time of decedent's death
WRONGFUL DEATH: Brought by the decedent's spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent's death
77
What is Vicarious Liability?
When one person is held liable for another person's negligence (eg an employer being held liable for an employee's torts)
78
2 Key Principles to be aware of regarding how vicarious liability is allocated between the parties:
(1) Joint and Several Liability - the responsible party can still be held liable for his negligence, but the employer is also liable.
(2) Indemnification - The party held vicariously liable may seek indemnification from the party who was directly responsible
79
Respondeat Superior Rule
The employer is held vicariously liable for the negligence of an employee if it occurred within the scope of employment.
80
Are employers liable for the intentional torts of employees?
NO, unless the employees conduct is within scope of employment
81
Frolic v. Detour
Detour: MINOR deviation from scope of employment---employer IS LIABLE.
Frolic: MAJOR deviation from the scope of employment---employer IS NOT LIABLE.
82
How to distinguish between an employee and independent contractor?
If the employer retains a right of control over the way the employee does the work, then the courts will treat that person as an employee
83
2 Situations when employers are liable for an independent contractor's torts:
(1) Non-delegable Duties
(2) Apparent Agency Doctrine
84
3 Non-Delegable Duties that employers will be resposible for the actions of independent contractors:
(1) Inherently Dangerous Activities
(2) Duties to the public or specific Ps for certain types of work, such as construction work by a roadway
(3) Shopkeepers have a duty to keep the premises safe for the public
85
Apparent Agency Doctrine
An IC will be treated as an employee if:
(1) the injured person accepted the IC's services based on a reasonable belief that the IC was an employee, based on manifestations from the putative employer, AND
(2) The IC's negligence is a factual cause of harm and such harm is within the scope of liability
86
Are parents vicariously liable for their minor children's torts?
NO.
BUT parents can be liable for their own negligence with respect to their children's conduct (eg negligent supervision)
87
When do state governments and municipalities have immunity to tort claims?
Governmental Functions (eg police, court system)----Immunity applies
Proprietary Functions (often performed by a private company; eg utilities, parking lots)----immunity has been WAIVED
88
When can government officials be sued for torts?
For their Ministerial Functions (where they are obligated to do something a particular way), but not discretionary functions (where they're allowed to use judgment)
89
What does the Westfall Act do?
Precludes any personal liability on the part of a FEDERAL employee under STATE tort law
90
Business partners can be liable for the torts of other business partners if:
The torts are committed within the scope of the business's purpose
91
3 Approaches to Vicarious Liability for Automobile Owners:
(1) NEGLIGENT ENTRUSTMENT: An owner can be directly liable for neglgently entrusting a vehicle (or other dangerous object) to someone who is not in the position to exercise reasonable care
(2) FAMILY-PURPOSE DOCTRINE: The owner of a car may be vicariously liable for the tortious actst of any family member driving the car with permission
(3) OWNER LIABILITY STATUTES: The owner of a car may be vicariously liable for the tortious acts of anyone driving the car with permission.
92
What does Joint and Several Liablity mean?
2 or more Ds are each liable for a single and indivisible harm to the P; each D is subject to liability to the P for the entire harm
P can recover all the damages from any negligent party
BUT the P cannot recover more than the total damages (ie no double recovery)
93
(T/F) When one D pays more than her share of the total liability, she is entitled to contribution from the other D.
TRUE
94
(T/F) Multiple Ds can be held jointly and severally liable, even if a jury apportions each D a different percentage of the fault.
TRUE
Some jurisdictions limit a D's joint liability if he is less than 10% at fault. The D will only be liable for his share of the fault.
95
2 Main Defenses to Negligence:
(1) Contributory Negligence/Comparative Fault
(2) Assumption of Risk
96
Contributory Negligence Rule
IF the P was negligent in some way, that negligence completely precluded the P's recovery
**Old rule and only remains in a few states
97
What is the "Last Clear Chance" Doctrine?
In a contributory negligence state, if the P was negligent, but the D had the last clear chance to avoid the injury, the P will still be allowed to recover.
98
2 Main Types of Comparative Fault:
(1) Pure Comparative Negligence: The P's recovery is reduced by the P's percentage of fault
(2) Modified Comparative Negligence: If the P is more at fault than the D, then the P cannot recover
99
Assumption of Risk Rule
Applies when a party knowingly and willingly embraces a risk for some purpose of his own
100
2 types of assumption of risk:
Express and Implied
101
What is the main example of an express assumption of risk?
An exculpatory clause in a contract
102
5 situations when a court might not enforce an exculpatory clause:
(1) the waiver disclaims liability for reckless or wonton conduct
(2) there is a gross disparity of bargaining power
(3) the party seeking to enforce the provision offers services of great importance to the public (eg medical services)
(4) The provision is subject to contract defenses (eg fraud or duress)
(5) The enforcement would be against public policy
103
3 categories where strict liability applies:
(1) Abnormally dangerous activities
(2) Animals
(3) Defective Products
104
4 "Abnormally Dangerous" Activity Factors:
(1) Whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care
(2) The severity of the harm resulting from the activity
(3) The appropriateness of the location for the activity
(4) Whether it has great value to the community
105
(T/F) THe owner of any animal is strictly liable for reasonably foreseeable damage caused by his animal while trespassing on another's land
TRUE
Exception: For animals on public roads, a negligence standard applies
106
2 potential defenses to strict liability:
(1) Comparative Negligence (sometimes): In some jurisdictions, the P's negligence does not bar recovery
(2) Assumption of RIsk - The P's assumption of the risk is a COMPLETE BAR to recovery
107
3 types of products liability claims:
(1) Negligence
(2) Strict Liability for Defective Products
(3) Breach of Warranty Claim
108
3 Types of product defects:
(1) Manufacture Defects
(2) Design Defects -
(3) Failure to Warn Defects
109
3 elements of a products liability claim for strict liability:
(1) The product was defective (in manufacture, design, or failure to warn)
(2) The defect existed when the product left the D's control; AND
(3) The defect caused the P's injury when the product was used in a foreseeable way.
110
2 ways to establish a manufacture defect:
THe product deviated from its intended design or the manufacturer's own specifications
111
2 ways to establish a design defect:
(1) Consumer Expectation Test: The product is defective in design if it is less safe than the ordinary consumer would expect
(2) Risk-Utility Test: The product is defective in design if the risks outweigh its benefits; must show that there is a reasonable alternative design
112
(T/F) Anyone who sells the product when it is defective is potentially strictly liable.
TRUE, if they are in the chain of distribution and in the business of selling.
*Casual sellers are not strictly liable, but may be liable for negligence
113
How is the failure to warn different for manufacturers of prescription drugs?
Manufacturers of prescription drugs just have to warn the prescribing physician
114
The manufacturer (or seller) can be liable for a plaintiffs ________________ misuse, modification, or alteration of a product.
foreseeable
115
"State of the Art" Defense
In some jurisdictions, the relevant state of the art at the time of manufacture or warning is evidence that the product is NOT defective.
In other jurisdictions, compliance with the state of the art is a complete bar to recovery.
116
In a defamation action, the P must prove that the D: (4 things)
(1) Made a defamatory statement
(2) That is of or concerning the P
(3) The statement was published to a third party who understood its defamatory nature
(4) Damage to the P's reputation results
117
3 points to remember for the Defamatory Statement requirement for a defamation claim:
(1) Language must diminish respect, esteem, or good will toward the P, or deter others from associating with the P
(2) Defamatory statements must be false to be actionable
(3) An opinion is not actionable as defamation, but an opinion that implies a basis in fact is.
118
3 points to remember for the Publication requirement for a defamation claim:
(1) Publication means that the statement was communicated to a third party
(2) A person who repeats a defamatory statement may be liable for defamation
(3) Federal statute provides that internet providers and platforms are not publishers for purposes of defamation
119
Standard for Defamation if the P was a Public Offical or Public Figure:
P must prove that the person who made the statement either (i) knew that it was false or (ii) acted with reckless disregard for the truth
ACTUAL MALICE STANDARD
120
Standard for Defamation if the P was a Private Individual:
P must prove that the statement is false and that the person who made the statement was negligent with respect to the falsehood (should have known the statement was false)
121
Libel v. Slander
LIBEL: A written, printed, or recorded defamatory statement
SLANDER: A defamatory statement that is spoken
122
Damages for Libel v. Slander
LIBEL: P may recover general damages (ie recovery without proof of measurable harm)
SLANDER: P must prove special damages (ie requires a showing of economic loss) UNLESS statements communicating slander per se.
123
4 types of statements communicating slander per se:
(1) Commission of a serious crime
(2) Unfittness for trade or profession
(3) Having a loathsome disease
(4) Severe sexual misconduct
124
3 Defenses to Defamation
(1) Truth
(2) Consent
(3) Absolute or Conditional Privilege
125
When does a speaker have absolute privilege that makes them completely immune from liability for defamation? (4 situations)
(1) In the course of judicial proceedings
(2) In the course of legislative proceedings
(3) Between spouses
(4) In required publications by radio and TV (eg statements by a political candidate that a station must carry and may not censor)
126
3 situtations where a speaker may have conditional privilege from liability for defamation (P has to show a higher level of culpability here):
Includes statements made:
(1) In the interest of the D (eg defending your reputation)
(2) In the interest of the recipient of the statement, or
(3) Affecting some important public interest
*Basically, statement is made in good faith pursuant to some duty or responsibility
127
Invasion of Privacy includes 4 separate causes of action (IFLAP):
(1) Intrusion Upon Seclusion
(2) False Light
(3) Appropriation of the Right to Publicity
(4) Public Disclosure of Private Facts
128
Intrusion Upon Seclusion
D intrudes upon the P's private affairs, in a manner that would be highly offensive to a reasonable person
129
False Light
D (1) makes public facts about the P, (2) that place the P in a false light, (3) which would be highly offensive to a reasonable person
130
Appropriation of the Right to Publicity
A property-like cause of action when someone:
(1) appropriates another's name or likeness
(2) for the D's advantage
(3) without consent
(4) and causes injury
131
Public Disclosure of Private Facts
(1) D publicizes a matter concerning the private life of another; and
(2) the matter publicized (i) is highly offensive to a reasonable person; and (ii) is not of legitimate concern to the public
*this tort is difficult to prove because courts broadly define "legitimate public concern"
132
Is qualified/absolute privilege a defense to invasion of privacy torts?
Only applicable to "false light" and "public disclosure" claims
133
Which invasion of privacy tort is most appropriate when someone takes another’s name or likeness and uses it for commercial advantage without consent, causing injury?
Appropriation of the right to publicity
134
6 elements of Intentional Misrepresentation tort:
(1) False Representation
(2) Scienter
(3) Intent
(4) Causation
(5) Justifiable Reliance
(6) Damages
135
5 elements of Negligent Misrepresentation tort:
(1) D provided false information to a P
(2) As a result of D negligence in preparing the information
(3) During the course of a business or profession
(4) Causing justifiable reliance and pecuniary loss; AND
(5) The P is either (i) in a contractual relationship with D or (ii) P is a third party known by D to be a member of the limited group for whose benefit the information is supplied
136
4 elements of Intentional Interference with a Contract:
(1) A valid contract existed between the P and a third party
(2) D knew of the contractual relationship
(3) D intentionally interfered with the contract, resulting in a breach; and
(4) The breach caused damages to the P
137
3 elements of Misappropriation of Trade Secrets:
(1) P owns information that is not generally known (a valid trade secret)
(2) P has taken reasonable precautions to protect it; and
(3) D acquires the secret by improper means
138
5 elements of Trade Libel
(1) Publication
(2) of a false or derogatory statement
(3) with malice
(4) relating to the P's title of his business, the quality of his business, or the quality of its products; and
(5) causes special damages as a result of interference with or damage to business relationships
139
Malicious Prosecution Tort
A person intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probable cause, and the action is dismissed in favor of the person against whom it was brought
140
Abuse of Process Tort
The D sets in motion a legal procedure in the proper form but has abused it to achieve some ulterior motive
141
3 elements to establish an "abnormally dangerous activity" for purposes of strict liability:
(1) high risk of harm
(2) that is not commonly found in the community, and
(3) which has a risk that cannot be eliminated with due care
142
3 categories of proper defendants in a strict products liability claim:
Manufacturer, Distributor, Retailer
143
5 elements/requirements of trade libel:
(1) Publication
(2) Of a false and derogatory statement
(3) With malice
(4) Relating to the P's title to his business property, the quality of his business, or the quality of his products
(5) Causing special damages as a result of interference or damage to business relationships
144
A musician's brother borrowed the musician's electric guitar. The brother told the musician that he was going to use it the next day to teach the children in his second-grade class about different musical instruments. Instead, the brother went to a rowdy bar that evening and played the electric guitar with his rock band all night long. A drunk bar patron got on stage during one of the songs, grabbed the guitar from the brother, and smashed it against the ground. The brother took the guitar to a repair shop the next day and was told that it would cost $750 to restore the guitar to its original condition. At the time of the incident, the guitar was worth $1,500. The musician asserts a claim against his brother for conversion.
What is the musician entitled to recover?
$1,500
A defendant who has permission to use the plaintiff's chattel commits conversion when he/she (1) intentionally uses the chattel in a way that exceeds the scope of permission and (2) seriously violates the plaintiff's right to control the chattel. The defendant is liable for the fair market value of the chattel at the time of the conversion.
145
7 special relationships imposing a duty to protect others (Please Help Eliminate Safety Concerns Causing Injuries):
(1) Parent/child
(2) Hospital/patient
(3) Employer/employee
(4) Shopkeeper/business invitees
(5) Common carrier/passengers
(6) Custodian/person in custody
(7) Inkeeper/guests
146
What is a land possessor's duty to (i) known or anticipated trespassers and (ii) unknown or unanticipated trespassers?
KNOWN OR ANTICIPATED: Warn of known artificial dangers and use reasonable care in active operations
UNKNOWN OR UNANTICIPATED: No duty
147
A woman in great pain from a toothache made an emergency appointment with a dentist. The dentist removed her tooth. Later, she returned and the dentist implanted a new tooth. This tooth, which was made from synthetic materials by a dental laboratory, contained a defect. The dentist was unaware of the defect because he failed to exercise reasonable care in examining the tooth before implanting it. Several weeks later, when the woman bit down on an apple, the implanted tooth broke. A piece of the broken tooth caused substantial damage to her mouth. The woman brought a strict products liability action against the dentist.
Is the woman likely to prevail?
No, because the dentist was a service provider.
Strict products liability claims can be brought against commercial suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff. However, service providers are not subject to strict products liability.
148
The owner of a wild animal is strictly liable for harm that is
(1) caused by a P's fearful reaction to the sight of an unrestrained wild animal, OR
(2) directly results from the wild animal's abnormally dangerous characteristics
149
What does Pure Several Liability mean?
When multiple defendants cause the plaintiff indivisible harm, the plaintiff can only recover from each defendant the portion of damages that corresponds to that defendant's proportionate share of fault (e.g., 15% of the damages for 15% of the fault)
150
What is the Modified (or Partial) Comparative Negligence Standard?
When the plaintiff's own negligence contributes to his/her harm, the plaintiff's recovery is reduced by his/her proportionate share of fault and is barred if the plaintiff's fault exceeds 50%*
*This is the view in the vast majority of modified comparative-fault jurisdictions. However, in a small minority of these jurisdictions, a plaintiff recovers nothing when the plaintiff and defendant are equally at fault.
151
A P who is a public figure or official can recover for defamation only if:
the plaintiff proves that the defendant made a false statement about the plaintiff with actual malice—i.e., with knowledge or reckless disregard of the statement's falsity.
152
3 duties of a land possessor to Invitees:
(1) Inspect for unknown dangers
(2) Make safe or warn
(3) Prevent harm from active operations
153
2 duties of a land possessor to Licensees:
(1) Warn of known latent defects
(2) Use reasonable care in active operations
154
The owner of a domesticated animal is generally not strictly liable for any physical harm caused by the animal. However, strict liability will be imposed when: (2 situations)
(1) the owner knew or had reason to know about the domestic animal's dangerous propensities (behavior uncommon for its species) AND
(2) the plaintiff's harm arose from those dangerous propensities
155
A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if
(1) the plaintiff contemporaneously perceived that conduct and (2) the plaintiff was closely related to the third party.
156
(T/F) To successfully assert the merchant's privilege as a defense to false imprisonment, a defendant-merchant must have detained the plaintiff on or in the immediate vicinity of the merchant's premises.
TRUE
157
Who can claim the merchant's privilege defense to false imprisonment?
A merchant, or a merchant's employee/agent
158
What is a "guest statute" with regard to automobile drivers?
A statute that says the only duty that automobile drivers owe to their guests is to refrain from gross or wonton and willful (ie reckless) misconduct.
159
With regard to automobile drivers, what is the difference between a passenger and a guest?
Passenger = Persons who pay money for the ride
Guest = persons who ride for free
160
To avoid strict products liability, a commercial seller must provide reasonable warnings or instructions regarding any:
Nonobvious, foreseeable risk of harm posed by its product if doing so will reduce that risk.
Failure to provide adequate warnings or instructions renders the product defective.
161
What is the minority approach to negligence per se?
The violation of the statute or ordinance is merely evidence of negligence that creates a rebuttable presumption that the D breached a duty of care.
162
A famous singer hired a bodyguard to protect her before and after her music concerts. Their employment contract authorized the bodyguard to use reasonable force to protect the singer from any dangerous situations that put her safety at risk. However, the singer also told the bodyguard that she preferred that he use a reasonable amount of force to get fans out of the way only if they are within a one-foot radius of her. Otherwise, the singer told him he should just help her maneuver through crowds and watch for anyone who might try to harm her.
After one of her concerts, the bodyguard guided the singer through an area heavily crowded with her fans. Most fans moved out of the way. However, one man kept pushing his way toward the singer and would not relent when the bodyguard politely asked him to move back. The man ignored the bodyguard and continued to push toward the singer. When the man was three feet away from her, the bodyguard punched the man in the face.
The man has filed a claim against the singer, claiming that she is liable for the battery committed by her bodyguard.
If the jury determines that the bodyguard committed battery against the man, which party is likely to prevail?
The man, because the bodyguard's conduct was within the scope of his employment.
An employer may be vicariously liable for a tort committed by its employee acting within the scope of employment, even if the employee did not follow the employer's instructions. Therefore, the fact that the bodyguard did not follow the singer's specific instructions is no defense.
163
2 situations when an employer will be liable for the intentional torts of its employee:
(1) When the use of reasonable force is inherent in the employee's job and the employee acts in the course of his/her work
(2) When the employee is authorized by the employer to act on its behalf and the employee's position provides an opportunity to commit an intentional tort
164
What is the modern approach to a landowner's duty to land entrants?
Main Rule: Reasonable care owed to all land entrants regardless of status on land (eg invitee)
Exception: Reasonable care not owed to flagrant trespassers
165
Who are "flagrant trespassers" under the modern approach?
A trespasser who enters another's land without permission and whose entry is particularly egregious--eg entry that results in commission of a crime
166
Children under _______ years old are incapable of negligence.
5
167
Failure to make the required disclosure breaches the standard of care owed by a physician to his/her patient and subjects the physician to negligence liability if: (2 conditions)
(1) The failure to disclose caused the patient to consent to the treatment or procedure (ie the patient wouldn't have done so if the risk was disclosed) AND
(2) The undisclosed risk materialized and caused the patient physical harm
168
A plaintiff is a candidate for state treasurer. The defendant has a long-standing grudge against the plaintiff. In an effort to dig up dirt on the plaintiff, the defendant hacked into the plaintiff's personal email account and discovered emails that contained lewd pictures of the plaintiff engaging in sexual conduct with a former staff member, taken while the plaintiff was married. The defendant called the plaintiff on the phone and said to the plaintiff, "I hate you. I have always hated you. I just emailed your wife and your two top advisors, telling them that you are an adulterer. And tomorrow, I am going to drive over to your house and punch you right in the nose." The plaintiff later confirmed that the defendant had emailed his wife and two top advisors to inform them that the plaintiff had committed adultery.
Under which of the following tort doctrines will the plaintiff be likely to recover?
Intrusion Upon Seclusion
Intrusion upon seclusion (a type of invasion of privacy) occurs when the defendant intentionally intrudes on the plaintiff's private affairs in a manner that would be highly offensive to a reasonable person.
169
The "last clear chance" exception only applies in ___________.
Contributory negligence jurisdictions
170
In a negligence action, a P can recover compensatory damages based on: (3 things)
(1) the P's initial physical harm
(2) any subsequent harm traceable to that initial harm, AND
(3) steps taken to mitigate the initial harm
**BUT the P's actions PRIOR to the D's negligent act are NOT a factor in determining damages.
