Rule Statements Flashcards
(89 cards)
1
Q
What is a tort?
A
the law governing civil liability for non-contractual harm done to a plaintiff’s person, property, emotions, reputation, privacy, or financial interests
2
Q
What are the elements for battery?
A
A person is liable for battery if:
1. They intend to cause a contact with the plaintiff’s person of such contact;
2. Their affirmative conduct causes such contact; and
3. The contact causes harm or is objectively offensive to the plaintiff
3
Q
What are the elements for negligence?
A
- The defendant owed a duty of care;
- The defendant breached that duty;
- The defendant’s breach caused the plaintiff’s harm;
- The plaintiff’s harm was within the scope of liability of defendant’s breach (an inquiry traditionally known as “proximate cause”); and
- The plaintiff suffered a legally compensable harm
4
Q
What is strict liability?
A
Courts assign liability whether or not the defendant’s conduct was wrongful
5
Q
What is negligence and recklessness?
A
Liability stems from conduct that unreasonably, but accidentally, caused harm (failure to exercise due care)
6
Q
What is an intentional tort?
A
Liability turns on whether the defendant intended the wrong or harm; acting for the conscious object to seek a particular result
7
Q
What is a battery?
A
An intentional infliction of a harmful bodily contact on someone else
8
Q
What is transferred intent?
A
Exists when a defendant intends to commit an intentional tort against one person but instead commits the tort against a different person
9
Q
What is transferred intent between torts?
A
Applies whenever both the tort intended and the resulting harm fall within the scope of the old action of trespass–where involving both a direct and immediate application of force to the person or to tangible property
10
Q
What are the elements for assault?
A
- The defendant intends to cause the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person; and
- The plaintiff was placed in imminent apprehension as a result of the defendant’s conduct
11
Q
What is false imprisonment?
A
The direct restraint of one person of the physical liberty of another without adequate legal justification
12
Q
What are the elements of false imprisonment?
A
A defendant is subject to liability to a plaintiff for false imprisonment if:
1. The defendant intends to confine the plaintiff within a limited area;
2. The defendant’s conduct caused the plaintiff’s confinement; and
3. The plaintiff is conscious of that confinement
- In minority jurisdictions, recovery is allowed if the plaintiff was conscious of the confinement or was harmed by it
13
Q
What are the elements for Intentional Infliction of Emotion Distress (IIED)?
A
A defendant is liable for IIED if they:
1. intended to cause extreme and severe emotional distress upon plaintiff, or knew with substantial certainty that the plaintiff would suffer severe emotional distress
2. With conduct that is extreme and outrageous; and
3. the plaintiff suffered severe and extreme emotional distress
- In minority jurisdictions, CA included, the conduct must be directed at the plaintiff with the plaintiff present
14
Q
What are the elements of trespass to land?
A
- The defendant commits an intentional act; and
- That causes the physical invasion onto the land of another
15
Q
What are the elements of trespass to chattels?
A
- The intent to act that interferes with another’s property
- The act interferes with the plaintiff’s right of possession in the personal property/chattel
16
Q
What are the elements of conversion?
A
- Intentional exercise of dominion or control over a chattel
- Which so seriously interferes with the right of another to control it that the action may justly be required to pay the other the full value of the chattel
17
Q
What is actual consent?
A
A plaintiff consents to the tortious conduct of another if the plaintiff is willing for that conduct to occur. Willingness may be express or inferred from the facts and plaintiff’s conduct
18
Q
What is revocation of actual consent?
A
When plaintiff clearly communicates a revocation of actual consent to the plaintiff, the consent is generally no longer legally effective
19
Q
What is implied consent (presumed consent)?
A
A defendant is not liable for tortious intentional conduct if:
1. Under prevailing norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff’s actual or apparent consent; and
2. The defendant had no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff’s consent
20
Q
What are the elements for self defense?
A
A defendant has a privilege to use force against the plaintiff for the purpose of defending themselves against the plaintiff’s unprivileged use of force if:
1. The defendant reasonably believes that force is immediately necessary to protect himself against the force, even though there is in fact no necessity
2. The amount of force is or reasonably appears to be necessary for protection against the threatened force
21
Q
What is an assault?
A
An assault is a tort that is available when a person is put in imminent apprehension of harm or fear of contact; placed in apprehension of physical contact is harm (I de S et ux v. W de S)
22
Q
Under battery, what makes a contact offensive? (Restatement § 3)
A
- The contact is offensive to a reasonable sense of personal dignity; or
- The actor knows that the contact is highly offensive to the other’s sense of personal dignity, and the actor contacts the other with the primary purpose that the contact will be highly offensive
23
Q
Products Liability - Strict Liability Organization
A
1.) Commercial Supplier
2.) Defects (Manufacturing, Design, Inadequate warning)
3.) Causation
i. actual
ii. proximate
4. Damages
5. Conclusion
24
Q
Commercial Supplier
A
To be subject to strict product liability lawsuit, the defendant must be in the business of selling products. Privity is no longer required between the buyer and the seller. Included as a “seller” are the manufacturers, distributors, and retail sellers – those who have title within the initial chain of distribution.
25
3 product Defects. When must plaintiff prove defect existed?
A plaintiff in a strict products liability case case must prove that a defect existed at the time it left the defendant seller’s hands. A defect can be 1. a manufacturing defect, 2. a design defect, or 3. a failure to warn defect
26
Manufacturing Defect
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. Products with manufacturing defects are defective because of some characteristic that is different than others in a line of that product, usually as the result of faulty workmanship or defective materials. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications
27
What tests are used to determine if there is a Design Defect?
Depending on the jurisdiction, courts apply either the consumer-expectation test or the risk-utility test to determine whether a design defect exists. Many jurisdictions use various hybrids of the two tests, and some states allow the plaintiff to prove a design defect under either test. Under the Consumer-Expectation Test, the product’s design includes a condition not contemplated by the ordinary consumer that is unreasonably dangerous to him/her. Under the Risk-Utility Test, the risks posed by product’s design outweigh its benefits. In a majority of jdx. which use the Risk-Utility test the plaintiff must prove that a reasonable alternative and economically feasible design existed.
28
Failure to Warn Defect
A failure to warn defect exists if: 1. There were foreseeable risks of harm, not obvious to an ordinary user, 2. the defendant had actual or constructive knowledge of those risks, 3. the risks would have been reduced or avoided by providing reasonable instructions or warnings, and 4. The defendant failed to provide adequate warnings or instructions to reduce or avoid those risks. The defendant is allowed to introduce evidence that the risk was either unknown or unknowable.
29
Causation (product)
A defendant’s defective product must be both the actual and proximate cause of the plaintiff’s injury
30
Actual Causation (products liability)
Actual Causation is determined by the “but for” test. But for the defendant producing and selling a defective product, the plaintiff would not have been injured.
31
Proximate Causation
The harm must be the natural and expected result of the defendant's negligent conduct. The remoteness of damage from the defendant's conduct will determine whether the conduct was the proximate cause of the injury. The essential factor in determining proximate cause is whether the damage is of such a kind that a reasonable person in D's shoes would have foreseen it. An intervening cause will only become a superseding cause which cuts off liability if it was unforeseeable.
32
Damages
A plaintiff is entitled to recover damages for any personal injury or property damage
33
Products liability - Negligence Organization
1.) duty
A.) What is the Duty?
B.) To whom is it owed
2. Breach
3. Causation
A.) Actual
B.) Proximate
4. Damages
5. Conclusion
34
Duty - What is the standard of Care?
Generally, a person has a duty to act as a reasonably prudent person would under similar circumstances.
35
Duty- to whom is it owed?
Under the majority Cardozo view, a duty is owed to those in the “zone of danger.” Those in the zone of danger are foreseeable plaintiffs. Under the minority Andrews view, a duty is owed to everyone
36
Breach - Negligence
A breach occurs when a defendant does not conform to their standard of care or duty.
37
Causation - products defect
A defendant's defective product must be both the actual and proximate cause of the plaintiff's injury
38
Products Liability - Breach of Express Warranty - Organization
1.) Commercial Supplier
2.) Express Warranty
3.) Breach of Warranty
4.) Causation
A.) Actual
B.) Proximate
5.) Damages
6.) Conclusion
39
Express Warranty
For purposes of a products liability claim, an express warranty is a guarantee – an affirmation of fact or a promise – made by a defendant in the “chain of distribution” (manufacturer, wholesaler, retailer, dealer, etc.) regarding the product that is part of the basis of a bargain. A key factor is whether the defect or characteristic of the item which was in breach of the warranty was readily discoverable to the plaintiff when the plaintiff took the item
40
Breach of Express Warranty
A breach occurs when the product does not conform to the warranty expressly provided
41
Causation - Breach of Express Warranty
The breach of the warranty must be both the actual and proximate cause of the P’s injury.
42
Actual Causation - Express Warranty
Actual Causation is determined by the “but for” test. But for the defendant breaching the express warranty, the plaintiff would not have been injured.
43
Products Liability - Breach of Implied Warranties - Organization
1.) Commercial Supplier
2.) Implied Warranties
A.) Fitness for a particular purpose
B.) Merchantability
3.) Breach of Implies Warranties
A.) Fitness for a particular purpose
B.) Merchantability
4.) Causation
A.) Actual Causation
B.) Proximate Causation
5.) Damages
6.) Conclusion
44
Implied Warranty of Fitness for a Particular Purpose
An implied warranty of fitness for a particular purpose arises when the seller knows or has reason to know: 1. The particular purpose for which the goods are required, and 2. that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods.
45
Implied Warranty of Merchantability
When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable. “Merchantable” means that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used
46
Breach of Implied Warranties
A breach occurs when the product does not conform to the warranty
47
Defenses to all product liability theories of Recovery
I. Assumption of the Risk
II. Contributory Negligence
III. Comparative Negligence
A.) Pure
B.) Modified
48
Defamation Elements
A plaintiff in defamation case must prove:
1.) Defamatory Statement
2.) Of or Concerning the Plaintiff
3.) Published to a Third Party
4.) Falsity of the Defamatory Language
5.) Fault on the Part of the Defendant
i. Public Figure or Official
ii. Private Person, Matter of Public Concern
iii. Private Person, Matter of Private Concern
6.) Damage to the Plaintiff’s Reputation
i. Libel
ii. Slander
49
Defamation defenses
1.) truth
2.) consent
3.) privileges
i.) absolute
ii.) Qualified
50
What is a Defamatory Statement
A defamatory statement is a statement of fact that tends to adversely affect one’s reputation.
A statement of opinion by itself is generally not actionable.
A statement of opinion may be actionable if it appears to be based on specific facts, and those facts are false and defamatory.
51
A defamatory statement in writing is
libel
52
A spoken defamatory statement is
slander
53
Is a statement of opinion by itself actionable?
A statement of opinion by itself is generally not actionable
54
when may a statement of opinion be actionable?
A statement of opinion may be actionable if it appears to be based on specific facts, and those facts are false and defamatory.
55
What does "Of or Concerning the Plaintiff" mean
The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.
If the defamatory statement is about a group of people, the plaintiff must be specifically identifiable as a member of the group within the statement to be actionable.
56
What does "Publication to the Third Party" mean
Publication means communication to at least one other person who understands it.
Intent to defame is not needed, only intent to publish.
Each repetition is a separate publication
However, for magazines, newspapers, books, etc., most states have adopted a “single publication” rule under which all copies are treated as one publication.
An interactive internet service provider is not treated as a publisher when a user of its service posts defamatory content.
To be an “information content provider,” thus subjecting it to liability, the internet service must create, develop, or, at a minimum, manipulate the content.
57
What does "Falsity of the Statement" mean
Common law presumed that defamatory statements are false. At CL, the burden was on the defendant to prove truth as a defense
Modernly, a majority of jdx. require that the plaintiff prove that the statement was false. slight inaccuracies are insufficient
58
What does "Fault on the Defendant’s Part" mean
A majority of jdx. require a showing of fault on the part of the defendant.
There are additional constitutional limitations (i.e., degree of fault limitations) depending on the status of the plaintiff
- Public Figure or Official
- Private Person, Matter of Public Concern
- Private Person, Matter of Private Concern
59
Fault on defendant's part - Public Figure or Official - Requisite intent
Under NY Times v. Sullivan, actual malice must be proven if the plaintiff is a public figure or official.
60
Public Figure Defined
A public figure is one who has interjected him/herself in matters of public controversy such that they have gained general fame or notoriety in the community.
61
Is general fame in specialized professional community sufficient to characterize someone as a public figure?
No, it is insufficient
62
How can Actual Malice be proven?
1.) knowledge of falsity; or
2.) reckless disregard for the truth of the statement
63
What is the reckless disregard for truth? (actual malice)
Reckless disregard for truth means that the defendant seriously entertained doubts as the accuracy of the information.
Mere failure to verify the accuracy of the information is insufficient to prove reckless disregard for the truth.
64
Fault on the Defendant’s Part - Private Person, Matter of Public Concern
Under Gertz v. Welch, when the plaintiff is a private person, only negligence regarding the falsity must be proved if the statement involves a matter of public concern.
if the defendant is negligent, only actual injury is recoverable
If actual malice is proven, presumed and punitive damages are allowed
65
Fault on the Defendant’s Part - Private Person, Matter of Private Concern
A state may permit recovery of presumed and punitive damages absent a showing of actual malice when the defamatory statements do not involve matters of public concern.
66
Damage to Plaintiff’s Reputation, Libel
Because of the permanency of a libelous publication – one which is written, printed, or otherwise recorded – common law presumed general damages.
The plaintiff only needed to invite the jury to award damages that it believed flowed from the defendant’s defamatory communication.
Subject to the modern constitutionally imposed limits on damages recoverable in a defamation action, the libel plaintiff now needs to prove general damages – those damages that compensate the plaintiff for harm to the plaintiff’s reputation.
67
Damage to Plaintiff’s Reputation, Slander
Where the defamatory statement is slander – spoken or in gesture – the plaintiff needs to prove “special damages,” that is, ascertainable damages involving economic loss
68
Under the doctrine of slander per se, a plaintiff alleging slander need not prove special damages if the statement fits into one of four categories:
1.) That the plaintiff committed a crime. Many jurisdictions require the crime to be one of moral turpitude or one which subjects the plaintiff to imprisonment.
2.) Conduct reflecting on the plaintiff’s lack of fitness in his/her business, trade, or profession.
3.) That the plaintiff has a “loathsome disease.” Traditionally, this included illnesses such as leprosy or a sexually transmitted disease.
4.) Traditionally, that a woman was “unchaste,” or modernly, general sexual misconduct.
69
Defamation Defenses - Truth
At common law, the burden of proving truth rested with the defendant as a defense.
Modern law requires the plaintiff prove that the statement was false. A defendant may still want to introduce evidence that the statements were true.
Slight inaccuracies will not suffice as an untruthful statement
70
Defamation Defenses - consent
Consent by the plaintiff is a defense, but as with other torts, a defendant’s defamatory statement cannot exceed the scope of the plaintiff’s consent
71
Defamation Defenses- Absolute privileges
Statements made under the following circumstances are shielded by absolute privilege:
1.) In the course of judicial proceedings by the participants to those proceedings,
2.) In the course of legislative proceedings by the participants to those proceedings,
3.) In the course of legislative duties by a legislator,
4.) In the course of federal or executive duties by federal or executive employees,
5.) Between spouses concerning a third-person,
6.) Required publications by a political candidate that a station must carry and may not censor.
72
Defenses - Qualified/ Conditional Privileges
Statements made under the following circumstances are shielded by a qualified/conditional privilege:
1.) In the interest of the publisher defendant, such as defending his reputation,
2.) In the interest of the recipient of the statement or a third-party (such as between a prior employer to a prospective employer about the employment of an employee),
3.) When, broadly, there is a public interest in encouraging candor.
73
74
Is excluding a party from entering a building (exlcusion) false imprisonment?
No
75
When may a bystander recover pursuant to IIED for tortious conduct directed at another?
The tortfessor must have known or have been substantially certain the bystander witnessed the tortious conduct directed at the other person
76
what are the 4 invasion of privacy torts?
1.) Appropriation of name or likeness
2.) Intrusion upon seclusion
3.) False Light
4.) Public Disclosure of private facts
77
What is an appropriation of Name or Likeness
A majority of states recognize an action for the misappropriation of the right to publicity, which is based on the right of an individual to control the commercial use of their identity
78
What elements must the plaintiff prove for appropriation of Name or Likeness
The plaintiff must prove:
1.) the defendant's unauthorized appropriation of the plaintiff's name, likeness, or identity;
2.) for the defendant's commercial advantage
3.) Lack of consent; and
4.) resulting injury
79
What is the invasion of privacy by intrusion upon seclusion
A majority of states recognize an action for unreasonable intrusion upon the plaintiff's private affairs.
the courts have held that eavesdropping via hidden devices is considered an unreasonable intrusion
the courts have held that photographing someone in public is not considered an unreasonable intrusion
80
what elements must a plaintiff prove For an invasion of privacy by intrusion upon seclusion
the plaintiff must prove:
1.) intrusion upon the plaintiff's place, conversation, or matter.
A.) the intruded place, conversation, or matter must be one in which the plaintiff holds a reasonable expectation of privacy - whether a reasonable person would have expected that place, conversation, or matter to be private from the defendant's specific intrusion.
B.) Reasonableness depends on who the plaintiff is and the nature of the intrusion
2.) the intrusion is highly offensive to a reasonable person
81
What is an Invasion of Privacy by False Light
A majority of jurisdictions recognize the tort of false light.
the false light does not necessarily involve an absolute falsity; rather, the presentation of the truth in a misleading way can be sufficient
Consequently, truth is not a defense if the resulting implication is still false or misleading, but may be a defense if the resulting implication is true
82
What elements must a plaintiff prove for invasion of privacy by false light?
The plaintiff must prove:
1.) the defendant publicized facts about the plaintiff,
2.) That placed the plaintiff in a false light,
3.) which false light would be highly offensive to a reasonable person
4.) most jurisdictions require the additional element that the defendant act with actual malice
83
When is a person liable for malicious prosecution? (malicious prosecution Elements)
1.) They instituted or continued a criminal prosecution against the plaintiff;
-Most jurisdictions have extended malicious prosecution to include civil cases as well as criminal actions.
2.) The proceedings were terminated in favor of the accused;
3.) There was an absence of probable cause for the proceedings;
4.) The defendant acted with malice; and
5.) The plaintiff suffered damages.
84
What is termination in favor of the defendant mean? (malicious prosecution)
-Terminated in favor of the accused (i.e., plaintiff) means the action was terminated at the instigation of the prosecution, usually for failure to prove a case.
-Termination does not include terminations at the instigation of the accused plaintiff, such as a plea deal leading to a dismissal of the criminal case.
85
when does probable cause exist? (malicious prosecution)
-Probable cause exist if credible facts exist that would lead a person of ordinary caution and prudence to believe that the accused is guilty of the crime alleged.
86
What is Malice for Malicious Prosecution?
“Malice” for purposes of the tort of malicious prosecution is when the defendant had a wrongful or improper motive or was motivated by some purpose other than bringing a guilty person to justice.
- It does not necessarily require ill-will or hatred.
87
What are some examples of damages that can be occured for malicious prosecution?
The plaintiff may recover legal expenses, lost work, time, loss of reputation, and emotional distress.
88
What is Abuse of Process?
Abuse of process is the misuse of the power of the court.
the essence of the tort lies in using the legal process for an ulterior motive.
89
Elements plaintiff must prove for abuse of process
To recover for abuse of process, the plaintiff must prove:
1.) a legal procedure set in motion in proper form;
2.) that is perverted to accomplish an ulterior motive;
3.) a willful act perpetrated in the use of process that is not proper in the regular conduct of the proceeding;
4.) causing the plaintiff to sustain damages
