Full Set Flashcards
1
Q
intentional tort
A
- voluntary act
- intent
- causation!
2
Q
transferred intent
A
intention to commit an intentional tort against one person but instead commits:
- different tort against the same person
- same intended tort against a different person
- OR different intentional tort against a different person
(battery, assault, false imprisonment, trespass to land/chattel)
DOES NOT apply to IIED.
3
Q
BATTERY DEFINITION
A
- Δ causes
- harmful or offensive contact with another
- & intends to cause that contact OR apprehension of it.
4
Q
assault
A
- Δ intends
- to cause Π to have
- reasonable apprehension of imminent harmful/offensive bodily contact.
5
Q
iied
A
- intentionally/recklessly
- acting extremely/outrageously
- causing Π’s emotional distress.
6
Q
false imprisonment
A
- intending to and
- having effect of confining/retraining an
- aware or harmed Π
7
Q
negligence elements
A
- duty
- breach
- causation
- harm
reasonable person standard.
8
Q
firefighter’s rule
A
certain emergency personnel may be barred from recovery.
9
Q
assumption of duty
A
voluntarily starts, placing in danger, authority, relationship.
10
Q
bailment
A
bailee temporarily takes possession of another’s (the bailor’s) property.
11
Q
TRESPASS TO LAND
A
- Δ intentionally
- causes
- physical invasion of land.
12
Q
TRESPASS TO CHATTEL
A
- intentional
2. dispossession, use or meddling with owner’s use.
13
Q
Private nuisance (elements)
A
- substantially & unreasonably
- interferes with use and enjoyment
- un/intentional
spite fence exception
14
Q
Private nuisance defenses
A
- assumption of risk
- compliance w/ regulation isn’t
- coming to the nuisance
15
Q
public nuisance (elements)
A
- unreasonable interference w/
- right in common to general public
- special harm to individual
16
Q
nuisance remedies
A
injunction (abatement), damages
17
Q
Tort Damages
A
BATTERY – harm did not have to be foreseeable, no proof of harm = nominal damages, some states punitive if w/ malis.
ASSAULT – no proof of actual damages require, nominal available, & damages from physical harm due to apprehension.
IIED – injury not required.
FALSE IMPRISONMENT –
TRESPASS TO LAND – no proof of actual damages required.
TRESPASS TO CHATTEL – actual damages for dispossession and use/intermeddling (also for dimunition in value).
18
Q
Tort Defenses
A
CONSENT – implied or express (must have capacity).
SELF-DEFENSE – force must be reasonably proportional, usu. no duty to retreat, unavailable to initial aggressor.
DEFENSE OF OTHERS – reasonable person standard for force.
DEFENSE OF PROPERTY – reasonable force, never deadly, no force for real property
PARENTAL DISCIPLINE –
PRIVILEGE OF ARREST – private citizen if felony actually committed & civilian is reasonable to suspect; police reasonably believe felony occurred and that arrestee committed it.
19
Q
Res Ipsa Loquitor
A
- Accident wouldn’t usu. occur but for negligence.
- Caused by agent/instrumentality w/in Δ’s exclusive control.
- Not to due Π’s fault.
- (Extended in cases of medical malpractice – joint & several liability.)
20
Q
AFFIRMATIVE duty
A
when assumed (once started can’t stop), creates dangerous situation, authority, special relationship.
21
Q
EXCUSED duty
A
physical characteristics (blindness), involuntary intoxication, CBA, custom, physicians.
22
Q
PER SE duty
A
law imposes duty, statute’s SoC, plaintiff must be named in statute. W/ impossibility or compliance being more dangerous as exceptions.
23
Q
SPECIAL SITUATIONS duty
A
o HIGHER – Common carriers o ORDINARY – innkeepers o RECKLESS – automobile guest statutes o NEGLIGENCE – automobile drivers to guests o CONTEXT DEPENDENT – bailment
24
Q
LAND POSSESSORS duty
A
reasonable care.
o 50% jurisdictions have a gradation system & 50%
o TRESPASSERS – can’t be willful/wanton, no duty to undiscovered trespassers & may follow “attractive nuisance” doctrine for children (artificial condition where know/reason to know: children may trespass • risk of death/harm • b/c age can’t discover/appreciate danger • CBA • fails to exercise reasonable care).
o LICENSEES – no duty to correct or warn; reasonable care.
o INVITEES – reasonable care, non-delegable duty (can’t contract to independent person) – Licensees=Invitees now.
o L & T – L common areas; Ts must fix what they break.
o OFF-PREMISES VICTIMS – NL for natural conditions exception trees in urban areas; reasonable care
o SELLERS OF REAL PROPERTY – duty to disclose to buyers concealed & unreasonably dangerous conditions.
25
CAUSE IN FACT (N causation)
• Causal link is insufficient – “but for test.”
• Multiple tortfeasors – JSL (either L for all damages).
o Alternative causation – when it could have been either wholly, burden shifts to defendants.
o Lost chance of survival – collect against Dr.
26
PROXIMATE CAUSE (N causation)
* 3rd RESTATEMENT - “Is this the kind of harm that made us decide that you are negligent?”
* PALSGRAF – continuous, substantial factor, no intervening causes, likely to cause effect, foreseen harm, too remote in time?
* Some courts combine CiF & PC.
27
N DAMAGES Special cases
* Collateral source rule – payments from outside sources formerly were not be credited against L of tortfeasor, but willfulness.
* NIED – can’t recover unless zone of danger or bystander if close relation, or misdiagnosis, or mishandling of corpse, can be parasitic to other tort.
* WRONGFUL DEATH – loss of support/income, companionship.
* Family member injury – spouse & children.
* Wrongful life – most states say no, some allow wrongful birth.
28
VICARIOUS LIABILITY
* Employment – direct negligence action or respondeat superior (detour vs frolic).
* Independent contractor – terms of agreement, if employer retains a right of control over the way work is done, inherently dangerous, nondelegable, duty to keep premises safe, or duty to comply with statutes.
* Business partners – maybe.
* Negligently entrusting – vehicle, gun or dangerous device.
* Parents – NL unless child is agent or parent is N with regard to own child.
29
IMMUNITIES
* Most have been eliminated.
* Fed waives immunity in tort except a long list of things.
* Most states have also waived to a certain degree.
* Fed employee are NL under state court law.
* Spouses & parents.
* Charities – most states have eliminated, some have capped damages.
30
MULTIPLE ΔS SHARE L
* Accident wouldn’t usu. occur but for negligence.
| * Caused by agent/instrumentality w/in Δ’s exclusive
31
CONTRIBUTORY NEGLIGENCE Defense
• TRADITIONAL RULE – if Δ could have avoided the accident & didn’t → L. (Most states have done away with it.)
• LAST CLEAR CHANCE DOCTRINE – if Δ had the last clear chance to avoid harm & didn’t, then Π could still recover.
o Helpless Π – peril due to Π’s contrib. N, but can’t escape → Δ L if, knew/should have known & could have avoided.
o Inattentive Π – peril due to Π’s contrib. N, but can’t escape → Δ L if, actual knowledge & could have avoided.
32
COMPARATIVE NEGLIGENCE defense
* Damages based on relative fault.
* PURE COMPARATIVE – Π’s N is never a complete bar, just reduced to the extent Π contributed.
* MODIFIED COMPARATIVE – majority, if Π Δ → 0, = → 50%.
* MULTIPLE ΔS – Π’s N is compared to N of all Δs combined.
* IMPUTED CONTRIBUTORY – disfavored. Limit 1 person’s recovery b/c another person’s N. An employee’s negligent driving may prevent or reduce an employer’s recovery from a third party if the employer’s car is damaged.
33
ASSUMPTION OF RISK – APPLIES TO NEGLIGENCE DEFENSE (CONSENT APPLIES TO INTENTIONAL TORTS)
* Knowingly & willingly.
* Exculpatory clauses may not enforced if: (1) disclaim reckless/wanton/gross; (2) bargaining power; (3) cc, innk & employers.
* Applies to attendees at sporting events.
34
STRICT LIABILITY ACTIVITIES
(1) abnormally dangerous activities, (2) wild animals, (3) defective products.
35
SL - ABNORMALLY DANGEROUS ACTIVITIES
```
• Factors vary by activity:
o Foreseeable & highly significant risk of physical harm even with reasonable care.
o Gravity of harm.
o Activity common?
o Value to community.
o Appropriate to location.
• Scope of risk – only SL for harm that flows from the thing that made the activity abnormally dangerous.
• Airplanes no longer SL, just N law.
```
36
SL - ANIMALS
* Dogs – “dog bite” statutes, majority only L if Nor had reason to know.
* Wild – species or class is not by custom devoted to the service of mankind in the place where he is being kept.
* L for damage from trespass.
* Π’s conduct in contributory → recovery. Π’s conduct in comparative → may limit. Taunting may convey assumption of risk.
37
SL - DEFENSES
* Comparative N Jur it could be reduced (minority).
* Assumption of risk is a complete bar in any SL case.
* Statutory privilege – performing essential public service, could still be L for N.
38
PRODUCTS LIABILITY CLAIMS
Negligence, SL, Warranty
39
PRODUCTS LIABILITY - NEGLIGENCE
* Trend is to discourage N claims in favor of warrant claims with duty, breach, causation & damages.
* Must show that a particular Δ was N, not just defective product.
40
PRODUCTS LIABILITY - WARRANTY
* Express – affirmative guarantee.
* Implied – read into product: merchantability & fitness.
* Contract – if the product turns out to be more dangerous than Π thought.
* Disclaimers – generally can disclaim warranties, but not merchantability as it apples to personal injury.
41
PRODUCTS LIABILITY - S PRODUCTS L DEFENSES
o Comparative fault jurisdictions it can be reduced.
o Product misuse or modification (comp – preclude; contrib – doesn’t eliminate), substantial change = superceding.
o Contributory not a defense, when Π is N in failing to discover defect.
o Assumption of risk is complete bar.
o Compliance with gov’t standards is not conclusive.
o State of the art is not complete, but is relevant.
42
PRODUCTS LIABILITY - S PRODUCTS L ELEMENTS
(1) defective product, (2) existed @ time left Δ’s control, (3) caused injury.
43
PRODUCTS LIABILITY - S PRODUCTS L DAMAGES
Π recovers for personal injury & property damage. Economic loss claims can win SL, but must be thru warranty claims.
44
PRODUCTS LIABILITY - S PRODUCTS L PARTY CHARACTERISTICS
* Manufacturer, distributor, or seller a product that is defective can be L.
* Π doesn’t have to be in privity with Δ, just anyone foreseeably injured.
45
DEFAMATION ELEMENTS
1. DEFAMATORY STATEMENT
2. CONCERNING Π
3. PUBLISHED TO 3RD PARTY WHO UNDERSTANDS DEFAMATORY LANGUAGE
4. DAMAGE TO REPUTATION
46
DEFAMATION DEFAMTORY STATEMENT (DEFINITION)
Diminishes respect, esteem, or goodwill towards Π or deters others from associating with Π.
MUST be FALSE, opinions only actionable if implication that there are facts to back up opinion.
LIBEL – (1) written/recorded, (2) only general damages needed compensating for rep harm, (3) libelous on face.
```
SLANDER – (1) word or gesture, (2) special damages OR slander per se:
• Crime of moral turpitude.
• Unfit for trade or business.
• Loathsome disease.
• Severe sexual misconduct.
```
47
DEFAMATION CONCERNING Π (DEFINITION)
Reasonable person standard, if referring to a group can only bring a claim if group so small its clear who is targeted.
48
DEFAMATION Complications
Matters of public concern Δ must have been negligent+ & malice necessary for public figure/official.
Public figures/officials must PROVE falsity, rather than just have truth on their side.
49
DEFAMATION DEFENSES
Truth – absolute.
Consent – absolute.
Privileges
o Absolute – judicial proceedings, legislative proceedings, btw spouses, & required publications by radio or TV.
o Conditional – good faith pursuant to some duty (1) in the interest of Δ to protect rep, (2) interest of recipient of the statement, OR (3) affecting important public interest.
50
DEFAMATION DAMAGES
PUBLIC OFFICIAL/FIGURE – only actual damages.
PRIVATE INDIVIDUAL W/ MATTER OF PUBLIC CONCERN – only actual damages.
PRIVATE INDIVIDUAL & NOT MATTER OF PBULIC CONCERN – general damages, including presumed damages w/o having to prove actual malice.
51
PRIVACY TORT DEFENSES
FALSE LIGHT & PUBLIC DISCLOSURE (same as absolute/conditional privileges) :
• judicial proceedings
• legislative proceedings
• btw spouses
• required publications by radio or TV
• good faith pursuant to some duty (1) in the interest of Δ to protect rep, (2) interest of recipient of the statement, OR (3) affecting important public interest.
Mistake to consent.
52
PRIVACY TORT - PUBLIC DISCLOSURE OF PRIVATE FACTS
Matter is highly offensive to a reasonable person & not of legitimate concern to public (courts determine this is broad).
53
PRIVACY TORT - FALSE LIGHT
stringing ½ truths to convey false impression.
54
PRIVACY TORT - UNREASONABLE INTRUSION UPON SECLUSION OF THE Π’S PRIVATE AFFAIRS
objectionable to reasonable person.
55
PRIVACY TORT - MISAPPROPRIATION TO RIGHT OF PUBLICITY
Π has right to name/likeness.
56
INTENTIONAL MISREPRESENTATION (Elements)
1. False – material, deceptive (generally no duty to disclose unless fiduciary relationship).
2. Scienter – knowledge or reckless disQregard.
3. Intent – intended to cause Π to act in reliance.
4. Causation – actual reliance necessary.
5. Justifiable reliance – gullible Π probably wont recover.
57
INTENTIONAL MISREPRESENTATION (Damages)
Π must prove actual, economic, or pecuniary loss. No nominal!
58
NEGLIGENT MISREPRESENTATION (Elements)
1. Δ provided false info b/c negligent.
2. Possible L for pecuniary b/c justifiable reliance.
3. Contractual relationship OR Π is 3rd party known by Δ to be a member of the limited group for whose benefit the info was supplied.
4. Intent.
5. Justifiable reliance.
59
NEGLIGENT MISREPRESENTATION (defenses)
N defenses can’t be raised.
60
NEGLIGENT MISREPRESENTATION (damages)
out of pocket & consequential damages.
61
INTENTIONAL MISREPRESENTATION (damages)
Π must prove actual, economic, or pecuniary loss. No nominal!
62
MALICIOUS PROSECUTION (WRONGFUL USE OF THE LEGAL SYSTEM)
civil context; action must be dismissed in favor of person bringing wrongful use suit.
63
ABUSE OF POWER (WRONGFUL USE OF THE LEGAL SYSTEM)
ulterior motive, e.g., school board suing teacher’s union to keep them from picketing.
64
TRADE LIBEL (misrepresentation INJURIOUS FALSEHOODS)
1. derogatory statement
2. related to Π’s business or products
3. special damages to bus relationships.
65
SLANDER OF TITLE (misrepresentation INJURIOUS FALSEHOODS)
1. publication of
2. false
3. derogatory statement about
4. title
5. with malice &
6. causing damages
7. diminishing value in the eyes of 3rd parties.
66
INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS
1. Δ knew of contractual relationship btw Π & 3rd party.
2. Δ intentionally interfered resulting inducement
3. Breach caused damages or adds additional burden.
4. Valid contract.
5. Exceeds fair competition.
6. Defense – can be justified for public health/safety reasons.
67
MISAPPROPRIATION OF TRADE SECRETS
1. Π holds not generally known & took precaution
| 2. Δ taking by secret/improper means.
