Outline Flashcards
(34 cards)
Duty owed by landowner
- Undiscovered trespassers
- Anticipated and discovered trespassers
- Undiscovered: no duty
2. Anticipated and discovered: must warn or make safe artificial conditions on the land
Contributory Negligence
SOC req’d by Plaintiff is judged using a RP standard
Pure Comparative Fault
Plaintiff can recover minus the % of fault that was her own
Partial Comparative Fault
A Plaintiff can recover reduced damages as long as she is less at fault than a certain standard, usually 50%. If she is over that standard, she is usually barred from recovering.
Manufacturing Defect
When there is a problem with the specific product, not the design of the product AND is dangerous beyond the R expectations of the ordinary consumer
Design Defect
When there is a flaw in the design of an entire product, this can include the packaging and inadequate warnings, AND an economically feasible alternative was available
Strict Liability in Product Liability: When must the defect exist?
When the item leaves the D’s control
Private Nuisance
Substantial, unreasonable interference with another’s enjoyment of their property
Public Nuisance
Act that unreasonably interferes with the health, safety, or property rights of the community
Is “Coming to the Nuisance” a defense?
No, if you move next to a nuisance, you may bring an action for nuisance
What is the general rule re: the vicarious liability of independent contractors? What are the exceptions? (2)
Generally, no liability to ER. However, there is liability if independent contractor is engaging in (1) an inherently dangerous activity or (2) the principal’s duty CN be delegated b/c of public policy considerations
Is the automobile owner generally liable for the negligence of the driver? Exceptions?
No, generally, the automobile owner is not liable for the negligence of the driver. However, there may be liability if the state has adopted (1) permissive use statutes [a statute that imposes liability for anyone driving with permission] or (2) family purpose doctrine. [imposing liability for any family member driving with permission]
Are parent’s liable for the torts of their children at CL?
No, parents are N liable for the torts of their children at CL. HOWEVER, parents can still be liable for negligent supervision b/c that is THEIR OWN negligence.
If Joint & Several Liability applies, what can a tortfeasor who is held financially accountable do to recover?
They can sue the other tortfeasors for contribution
How does Barbri say governmental immunity works?
There is immunity for operational acts (acts taking place w/ no decision making); however, there is immunity for discretionary acts
What are the elements of defamation?
(1) Defamatory language concerning the P (2) published to a third person (3) that damages the P’s reputation
When is damage due to defamation presumed?
When it applies is (1) libel (printed defamatory language) or (2) slander (when it is regarding a person’s profession, loathsome disease, immoral crime, or the chastity of a woman)
If the defamation is neither libel or slander, what must be shown in order to have damages?
Special pecuniary damages
Constitutionally, if the P is a public official or the issue is a matter of public concern, what must the P show?
(1) that the statement was false AND
(A) “Actual malice” if public official, which is actual knowledge of its falsity or reckless disregard OR
(B) (1) at least negligence as to truth or falsity and (2) actual injury (no presumed damages)
What are the three defenses to defamation?
(1) Truth, (2) Absolute Privilege, or (3) Qualified Privilege.
When does absolute privilege apply re: defamation?
If the defamatory comment was made during an official proceeding, such as a legislative meeting on the floor or during a judicial proceeding
When does a qualified privilege apply re: defamation?
“In the interests of the publisher or speaker…” … can be lost if said with actual malice
Intentional Misrepresentation/Fraud – Elements?
(1) made by a defendant with scienter (i.e., knows the statements are false); (2) with the intent to induce reliance; (3) there is actual reliance, (4) the reliance was justifiable, and (4) damages
When does negligent misrepresentaiton occur?
When someone in a business or professional capacity breaches their duty of care to the P, causing them to actually rely on the misrepresentation, the reliance was justifiable, ultimately causing damages
