General Flashcards

Question

Abuse of Process Case

Answer 1

Maniaci v. Marquette - Girl in school but wanted to leave. School brought in doctor declared her crazy and detained her until parents called for release - No false imprisonment because confinement was lawful - Not malicious prosec because dropped charges do not count and there was no malice - Yes abuse of process because they used a mental illness statute to hold her until parental permission was given

Answer 2

Def: when D, through and extreme and outrageous conduct, intentionally or recklessly causes the victim severe emotional distress (limited to extreme cases) Elements - outrageous conduct - intent or recklessness - causation - serious emotional harm

Answer 3

- word can be enough - but must be beyond the bounds of decency or socially tolerable conduct - extreme and outrageous conduct: depends on facts of case and relationship between parties (power differentials), vulnerability of victim, motivation, conduct repeated or prolonged (ordinary insults not enough)

Answer 4

- Purpose or desire - Substantial certainty - Recklessness - conscious disregard of a substantial risk of serious harm (not a purely intentional tort)

Answer 5

- A reasonable person would be harmed - P was harmed - Harm is severe

Answer 6

Slocum v. Food Fair (NO IIED) - heart attack at store for "you stink" - no because conduct was not outrageous. Insult is not enough.

Answer 7

Jones v. Clinton (NO IIED) - Clinton touchy feely - This was not found to be extreme and outrageous - No evidence that P was distressed because never missed work (with governor Clinton), never filed a complaint, never consulted medical professional, and had no bad encounters after

Answer 8

Swenson v. Norther Crop - Frequent remarks, pattern of behavior, sex discrimination, refusal to communicate, supervisory position, knowledge of P's deteriorating emotional situation all led to YES IIED

Answer 9

Public figure has to show actual malice and false statement of fact - Actual malice is knowledge of falsity or reckless disregard as to to the truth

Answer 10

Hustler Mag v. Falwell - Ran parody of alcohol ad that P had sex with mother in outhouse - Falwell is a pubic figure and the ad parody is not reasonably believable. It is not a false statement of fact and thus no IIED

Answer 11

If speech is a matter of public concern, it is most highly protected by the first amendment. Public concern is when it can be fairly considered as relating to any matter of political, social, or other concern to the community

Answer 12

Snyder v. Fred Phelps - Picket at soldiers funeral - Ds talking about public issues and properly had picket space. So speech is protected under the first amendment.

Answer 13

- Self Defense - Defense of Others - Defense of Property - Consent - Necessity - Public Necessity - Private Necessity

Answer 14

- complete defense elements: - use of reasonable force - D reasonably believed - Necessary - To prevent immediate harm other rules: - reasonably perceives necessary to protect from threat of immediate force - since but unreasonable belief is NOT SD - Cannot continue to hit until harm is gone - Cannot self defense if you started, or you gave clear notice of withdrawal

Answer 15

- similar to self defense, but another person - some jx the victim need a valid self-defense claim - reasonable mistake can be okay depending on jx.

Answer 16

- Can use reasonable force to defend property | - Cannot take human life or inflict serious injury is NOT reasonable

Answer 17

Can detain for a reasonable period based on a reasonable belief of theft

Answer 18

Can use reasonable force in "hot pursuit" of someone wrongfully taking property

Answer 19

Kid snowball at a car case - no self defense because danger gone - defense of others? maybe but did not tell parents - yes false imprisonment because it was unreasonable

Answer 20

If there is freely given informed consent, that is a defense to most intentional torts - Express - "objective manifestation of consent" - Implied - under the circumstances, the conduct reasonably conveys consent (custom/usage helps) children and incapacitated cannot usually consent issues when consent goes beyond consent, or induced by duress or fraud

Answer 21

Reasonable belief of imminent danger to greater interest | do minimal harm to protect interests

Answer 22

- Allows the appropriation of property to avoid a greater harm to the public - Under common law, victim does not have to be compensated (use property to prevent public disaster) - No intentional infliction of great bodily harm or death to small number to avoid to large number - civil disobedience - consent can nullify an claim

Answer 23

- A privilege that allows D to interfere with the property rights of an innocent party in an effort to avoid greater injury (harming another's property in defense of your own interest) - Actor must still compensate P - D must have reasonably perceived an immediate need to appropriate the victim's property to avid a greater damage to property or life

Answer 24

Vincent v. Lake Erie - Storm, boat, dock case - D allowed to dock boat to dock, and trespass on dock, but has to pay if any damages

Answer 25

- Valid contractual relationship or business expectation - Knowledge - Improper and intentional interference - Causing breach (must've undermined contract relationship) - Resultant damage

Answer 26

- Nature of conduct - Motive - Interest interfered with - Interests advanced by interferer - Social Interest * Freedom of action of the interferer * Contractual interest of the other party - Proximity - conduct and interference - Relations between parties

Answer 27

Defense for Contract and Expectation - Responsible for welfare of another - Advice - Bona fide claim - Agreement illegal v. public policy Defense for At Will Contract and Expectation - Competitors Defense for Expectation only - Financial Interest - Influencing business policy

Answer 28

Calbom v. Knudzton - Accountant being an ass to attorney case. - at will contract - D had knowledge or relationship and interfered with it. Yes IICER

Answer 29

Lowell v. Mother's Cookies - Ruined sale, then bought for low price - Yes, there is a cause of action for IICER

Answer 30

EPIC v. Superior Court - nonprofit that published newsletter criticizing the newspaper and telling patrons not to buy it and not patronize businesses that advertise - Political motivation boycott is protected speech and thus this is not IICER

Answer 31

- Material misrepresentation (RP think important or knowledge that important) - Knowledge the statement is false OR reckless disregard as to its truth or falsity - Intent to induce reliance by the victim - Justifiable reliance by the victim - Monetary damages to victim Note - actions more than omissions - omission requires a duty to provide info - future facts are not actionable 2 types of omissions: - Fiduciary relationship - Partial info where there's reasonable expectation to disclose omitted information

Answer 32

Nader v. Allegheny Air - P was bumped from flight - sued for fraud b/c had a confirmed reservation - Nondisclosure of overbooking policy was misleading and false understanding when given a confirmed seat

Answer 33

Legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability - look at closeness of the relationship between the action/actor and harm to P

Answer 34

NJ Carpenters Health Fund v. Philip Morris - misrep health and addictiveness of smoking, which resulted in increase health costs to insurance - injuries are too remote to the funds. Smokers should bring suit. - hard to show it was tobacco co intent to dupe the funds into paying higher health care

Answer 35

- duty by the D to conform to - a standard of conduct - breach by the D of the standard of conduct - causation - scope of liability - damages

Answer 36

did D have a responsibility to do something to prevent harm to others? 2 tests - General duty principle - if you act, you owe a duty to foreseeable Ps for foreseeable risks - Special Duties this is a question of law (every other factor is fact)

Answer 37

``` Did Ds conduct fall below the standard of care owed? Or, was D reasonable? 2 tests - RP test - Exceptions * Physical disabilities * child standard of care * negligence per se * professional negligence (ex medical malpractice) ``` Use Hand Formula analysis

Answer 38

Is there a factual link between the breach and the harm or did Ds breach cause the harm? - But For Test - Substantial Factor Test

Answer 39

Should they be liable for the harm or is the harm too remote? Is harm too incidental or unlikely to impose liability? - Test is foreseeability Scope limits the type of harm the D can be liable for

Answer 40

Test is legally cognizable harm

Answer 41

- Duty: Is the P in the GENERAL CATEGORY to which the harm is foreseeable? Is the harm in the GENERAL CATEGORY foreseeable from the action? - Breach: Would a reasonably prudent person FORESEE that THIS CARELESS ACT could injure someone to whom you had a duty? - Scope: Does this particular injury fall within the SCOPE OF INJURIES that a reasonably prudent person should have FORESEEN? Was this specific P foreseeable or was it too remote or freakish?

Answer 42

- Survival suit: suit by deceased's estate for loss to the deceased o Also covers suit against estate of Defendants - Wrongful death: Suit brought by relatives of the deceased for the damages caused by the death

Answer 43

Pitre v. Employer's Liability - firemen fundraiser case - No duty to prevent all harm, just harm that is foreseeable and unreasonable. Danger was not unreasonable. Kid should have known danger.

Answer 44

- Act/Conduct - Foreseeable plaintiffs - Foreseeable risks - Reasonable care = breach analysis

Answer 45

- Foreseeability - Broadly interpreted - Duty is a threshold element - is this the type of claim that should go forward?

Answer 46

- You act, you owe a reasonable care to foreseeable plaintiffs against foreseeable harms from your conduct.

Answer 47

Difference between action and non-action

Answer 48

- No duty to act, assist, or rescue

Answer 49

- Special relationship - Prior conduct created risk - Assumption of duty - Voluntarily starting to aid - Statute creating explicit duty - Intentional prevention of aid by others

Answer 50

- Tarasoff duty (duty to warn) - Parent duty to control children - Landowner duty to protect - Police's duty to protect

Answer 51

- Invitee * consent of owner, business invitee, public building * Owed a duty of due care - Licensee * social guest * not owed due care, owed warning against hidden non-obvious traps, no willful injury - Trespasser * No consent of owner * duty to protect against willful wanton injury (trap) * Anticipated - warning/fixing of artificial hidden traps known to owner * Child trespassers (attractive nuisances) - If and only if, the kids were lured onto the territory by seeing the thing that harmed them, there is a duty

Answer 52

General duty of care

Answer 53

- Statutes imposing liability on those serving alcohol to the intoxicated - Creates a limited duty to those serving alcohol - Courts do not like these statutes. Up to courts, would be no duty or no scope.

Answer 54

For getting rid - Applies to possessor of land (apartment renters too) - Important to keep our of the jury, the duties for a landowner - Must more flexible, less rigid - Value life and limb over property - more protection to entrants on land - Trichotomy does not fit anymore - Duty cases can be tricky For keeping - 10 states - general duty to a trespasser - CA - after this case, created a duty to trespasser - Licensee - homeowner should have to hover over guest to protect them or repair everything on land because having guests over.

Answer 55

Dependency - doctor/patient - parent/child - teacher/k-12 student Power - Common carriers (plane, train) - Inns/hotels - Employers - Landlord/tenant - Business/patrons

Answer 56

Peril caused by an instrumentality under control, then maybe a duty

Answer 57

L.S. Ayres v. Hicks - Kid in the elevator case - The elevator was an instrumentality under control and there were workers there. Store took no action or non-action quick enough.

Answer 58

If you gratuitously or for consideration to begin helping someone, then you are subject to liability to the other for physical harm resulting from failure to exercise reasonable care to perform aid IF - failure to exercise such care INCREASES risk of harm - the harm is suffered because of the victim's RELIANCE upon the undertaking

Answer 59

Miller v. Arnal Corp. - Mountain rescue case - D did not make situation worse, did not affect the police rescue efforts.

Answer 60

- Parents and children - Landowners - Public agency's duty - Tarasoff

Answer 61

- Parent liability: parents are not under the common law automatically liable for their children's torts, although some states have imposed vicarious liability statutes - They can be held negligent in their supervision of the children - Mere knowledge by the parent of a child's mischievous and reckless, or vicious disposition is not of itself sufficient to impose liability o They must know that the child has a habit in engaging in that specific conduct o Must have notice and an opportunity to intervene Parents have a limited duty to protect others from their children’s criminal acts; the determining factor is notice.

Answer 62

Wells v. Hickman - Kid showed signs of serial killer, then he invited a kid over to grandparents house and killed him. - Court found that animal killings and school fights, suicide do not equate murder. Kids also played together before. - Grandparents also were watching kids, but not a relationship for liability

Answer 63

- Once a therapist determines, or, under applicable professional standards should have determined, that a patient poses a serious risk of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. DUTY TO WARN. - special relationship can amplify - foreseeable victims can amplify

Answer 64

- Statute in CA limited to explicit threats and need to warn - Most courts use should have determined HOWEVER, Tarasoff duty has only been imposed where the person actually determined Policy - balanced with protecting confidentiality of patients and the effectiveness of therapy

Answer 65

Alcohol - some jx impose a duty on establishments serving alcohol to prevent drunk people from driving home and injuring someone Extending to others that are not therapists? - Parents/grandparents - school psych/counselors - residential homes for homeless, mentally incapacitated and children

Answer 66

Invitee - reasonable precuations to protect invitee from criminal attacks - having a duty of care, does not usually meant duty to protect from crime

Answer 67

Specific Harm Test - (minority) landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or was about to occur Prior similar Incidents test - landowner may owe a duty of reasonable care if evidence of prior similar incidents of crime on or near the property shows that the crime in question was foreseeable Totality of circumstances test - Court considers all of the circumstances surrounding an event (nature, condition, location, prior similar incidents) Balancing Test - (CA) a court balances "the degree of foreseeability of harm against the burden to be imposed"

Answer 68

Delgado - even when foreseeability is high, burden of requiring private businesses to provide security is almost always going to be too high Sharon case - no duty for assault in parking garage. Business invites crime is not sufficient. High cost so need high foreseeability.

Answer 69

DTD v. Motz - sexual assault at frat party - court likes totality because it does not impose duty to ensure an invitee's safety, but requires landowner to take reasonable precaution to prevent foreseeable criminal acts. Prior incident important. - no duty for Nationals because no relationship. Posters was not enough to create duty.

Answer 70

``` Factors for special relationship - foreseeability of harm - degree of certainty of harm - closeness of conduct and injury - moral blame - policy of preventing harm - burden imposed for the increased security PLUS - extent of the agency's powers - the role imposed upon it by law - limitations of budget ``` Duty when (narrowly applied) - a special relationship - promise and victim's reliance - creating the risk - starting to aid

Answer 71

Generally no duty Policy - too much tort liability - limited resources, police determine where to put - do not want to make police choose between who is less likely to sue - Time in court = less time protecting public

Answer 72

Davidson v. Westminster - Stabbing in laundromat - no duty because knowledge of tendencies of felon and visual identification is not enough to impose a relationship

Answer 73

Johnson | - Foster child put in with family, but had homicidal tendencies. Agency created risk, yes duty

Answer 74

Mann - police parked behind stalled cars, called tow truck and left without putting warning or flares. Special relationship existed because expert in traffic safety and started aid

Answer 75

- There is direct contract or privity between public official and injured P making P apart from general public - There are express assurances given by a public official - Which gives rise to justifiable reliance on the part of the P - Police may have immunity regardless of relationship

Answer 76

Usually not duty if only harm inflicted is emotional - most states require physical manifestations Criteria for imposing duty/exception - Defined, limited group of Ps - Credible claim in circumstances - strong justice reasons for giving compensations Policy - Want to avoid limitless liability - Some emotional harm is part of living, hard to distinguish between regular emotional harm and compensable harm - Proof problem, easier to fake emotional harm - Worried about flooding courts with cases Exceptions - Fear of Physical Harm - Bystander Recovery

Answer 77

Near miss - almost physical harm that causes emotional harm. General claim, show elements of negligence to P here - 2 tests for this - Impact rule - any touch (you have to have been touched) - Zone of physical danger - P within zone of risk

Answer 78

- Show the principal has a claim (derivative claim), show all elements of negligence for the actual victim - Show duty to the bystander (and damages) * Zone of danger/Amaya - relative can recover if they were within zone of danger (significant minority) * Dillon (more than half states) + Duty if injury reasonably foreseeable + Guidelines for foreseeable >Nearness to accident >Direct sensory observation (can be nonvisual senses) >Relationship to victim (most courts: spouse, parents, children siblings only) > case by case determination * Thing (duty if, and only if, P) + Closely related to victim + Present at scene and aware of injury + Suffers severe emotional distress that is not an abnormal response to circumstances

Answer 79

NIED, when caused by knowledge of third person's injury is recoverable in some cases that meet the standards

Answer 80

Thing v. La Chusa - Thing was minor hit by a car, Mom heard about accident and came out to see Thing bloody and unconscious - Court found that mother does not meet the Thing standard because she was not present at the time of the injury and only saw the aftermath + Closely related to victim + Present at scene and aware of injury + Suffers severe emotional distress that is not an abnormal response to circumstances Policy - drawing a line may produce unjust results

Answer 81

- Improper handling of relative's corps - Mistakenly informing P that a relative died - CA has allowed recovery where P is a "direct victim" Some courts allow recovery for mental distress caused by D's negligent damage to chattel, but limited it to chattels that have strong sentimental value

Answer 82

- If you are acting* on your land, the general duty principle applies and you have a duty as long as P is foreseeable and harm is foreseeable - The duty we are talking about here is when there is a dangerous condition, not when you are acting

Answer 83

a possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if and only if; - The owner knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees and should expect that they will not discover or realize the danger and - He fails to exercise reasonable care to make the condition safe or to warn the licensees of the condition and the risk involves - And the licensees do not know or have reason to know of the condition and the risks involved

Answer 84

Younce v. Ferguson - Kegger case - Keeps trichotomy, we should not subject landowners to unlimited liability - Small ticket price does not make her an invitee - no profit, just cover cost of party supplies. She was also aware of risks.

Answer 85

``` Children see, from far-off land - artificial condition - hazardous - unfenced - unhidden - attracts child on land If children harmed by condition, owner might be liable ```

Answer 86

- artificial condition - possessor knows/has reason to know + children are likely to trespass + Of dangerous condition - Unreasonable risk of death or seriously bodily harm to children - Children do not discover condition or realize danger because of youth - Utility of maintaining condition and burden of removal are slight vs. the risk to children - Possessor fails to exercise reasonable care to eliminate danger or protect children

Answer 87

United Zinc & Chemical v. Britt - Pool poisoned with clear chemicals, D knew, 2 children saw it, swam and died - Court says there was no evidence that the water led them onto the property or that they could even see it from "far off" road

Answer 88

Gets rid of trichotomy Test for possessor of land: whether the person acted as a reasonable person in the circumstances; although the status of the injured person may be relevant, it is not determinative of the duty owed. Basically a foreseeability test. - When is It appropriate to create a special or limited duty- Factors: o Foreseeability of harm to P o Degree of certainty P was injured o Closeness of connection between conduct and injury o Moral blame of D o Preventing future harm o Burden to D o Consequences to community o Availability, cost, and prevalence of insurance

Answer 89

Rowland - Broken faucet case - She knew about faucet and it was not obvious. The proper test for possessor of land is whether the person acted as a reasonable person in the circumstances and foreseeability considering the factors. Reasonable people do not alter their reasonable behavior based on these distinctions. Trichotomy is really complex with a lot of exceptions, and it is hard to apply.

Answer 90

Doctor's negligence led to birth of healthy child Policy - Financial concerns with having unwanted child - Damages difficult because may be unclear Damages - Majority - medical costs for pregnancy Minority - costs for raising child

Answer 91

Doctor's negligence led to birth of disabled child - Alternative: abortion - Disability has to be more than regular disease such as asthma - Most courts do award compensation for this one + because it's malpractice + Damages are usually pretty clear (cost of raising disabled child)

Answer 92

Child sues for being born with disability, alleging suffering - Alternative: not being born (abortion) - Issue: Alternative is not being born, which is unquantifiable - may get special damages for extraordinary expenses necessary to treat the hereditary ailment

Answer 93

Turpin v. Sortini - First born, doctor said no problems. Had second child that had same hereditary disease as first child. - No cause of action for the general harm for being deprived of right of being born without disability. P gained life which is better than not being born. - There is a cause of action for special things/care she will need for her whole life because of the condition. - No general damages, but yes extra expenses

Answer 94

Only harm caused is economic in these cases (not including actual injury). Generally, there is not duty when the only loss is economic Balancing Test: - Hold professionals liable for negligence VS. prevent extensive liability for errors Approaches: - Cardozo, Ultramares: an accountant only liable when there's privity or quasi-privity - Weiner's approach: reasonable foreseeability - Restatement: accountant liable if known P, known transaction. Exceptions - Accountant liability (do not need to know) - Special relationship

Answer 95

Generally accepted exception to the rule that the negligent D is not liable for pure economic loss. Under R2d, negligent D must have notice that the third party is relying on the info in order to impose liability

Answer 96

Can in some cases be protected against injury from negligent conduct, but it requires a special relationship. NARROW Criteria: - Extent to which the transaction was intended to affect the P - Foreseeability of harm to the P - Degree of certainty that the P suffered injury - Closeness of connected between D's conduct and the injury suffered - Moral blame attached to the D's conduct - Policy of preventing future harm Policy - Possible excessive liability - Creation of undue burden on freedom of action - Fraudulent or collusive claims - Speculative nature of damages

Answer 97

J'Aire Corp. v. Gregory - Owner had contract with D for improvements of building. The K did not specify any date for completion for work. Restaurant could not open, but no privity between restaurant any contractor cause of airport. - This tort needs a special relationship (not privity), created relationship by: - K could not have been performed without affecting P, - it was foreseeable (and P told D), - unable to do business for a month, - D negligent especially blameworthy because P told him and he kept doing it, - and it meets foreseeability requirements of general tort law. - D had a duty to complete construction in a way that would have avoided unnecessary injury to P's business, even though K was with building's owner and not P. o Note: this case is an somewhat of an exception; normally courts do not allow recovery of pure economic loss under negligence without a business/professional context.

Answer 98

RP Test - In light of foreseeable risks, did D (or P in contributory negligence) behave as a reasonable prudent person under these circumstances? Restatement - Conduct is negligent if its disadvantages outweigh its advantages

Answer 99

``` B < (P*L) to approaching breach Burden < (probability x loss) - essentially a cost benefit analysis - probability of the harm - gravity of resulting jury/harm - Burden of adequate precautions ``` Policy - Somewhat arbitrary valuations - Difficult to measure loss - Efficiency does not always equal more justice

Answer 100

- Boat loading hatch death case - If the probability of an accident were high, then not taking extra precautions would have imposed negligence- he would have been expected to rope off area, light the hallway, etc. But P was low. Non-negligence was reasonable, affirmed.

Answer 101

``` - Physical disabilities + Test - reasonable person with similar disability - Negligence per se - Professional negligence - Children standard of care ```

Answer 102

Emergency is NOT an exception - A situations of emergency not of the D's making is relevant - Test: RP in similar emergency Mental disability is NOT an exception

Answer 103

Reasonable child of similar age, maturity, and experience Applies to: - States without age limits, minors up to 18 - Children above age limit, until 18 Some states exempt young children from liability in negligence - No limits - any child can be liable in negligence - Very young children cannot be liable (exact age varies) - Under 7 - No liability in negligence; 7-14 rebuttable presumption - no negligence; over 14- regular negligence - Restatements - a child less than 5 is incapable of negligence Policy - Fairness - less developed - able to make mistakes and learn - social investment for future - lack of experience - kid activities are generally low risk and less damage

Answer 104

Children held to RP standard when - adult activity - activity normally undertaken only by adults for which adult qualifications are required - inherently dangerous activities (dangerous to OTHERS)

Answer 105

Neumann v. Shlansky - Golf kid hit ball - Kid likely liable because golf is an adult activity and a ball is a dangerous missile. Duty of reasonable care to avoid injuring others while golfing. Kid knew rules.

Answer 106

Test for physical disabilities - RP with similar disability Test for mental disabilities: - In general and most of the time: insanity is not a defense to negligence - policy + between 2 innocents, the one that caused the harm should pay + could lead to false pleads of insanity + induce family members to act

Answer 107

When someone is suddenly overcome with an unknown disability (heart attack)

Answer 108

Breunig v. American Family Insurance Co - Crazy lady who said she was following god into a car accident - She had delusions for a month before, so it was not a sudden onset. Negligent because she chose to drive. - Majority rule holds an insane person to a RP standard of care EVEN IF it was sudden and you had no prior notice. OUTLIER

General Flashcards

(132 cards)