Tort Essay Flashcards
Essay
Negligent Infliction of Emotional Distress
The duty to avoid causing emotional distress to another is breached when D created a foreseeable risk of physical injury by directly causing sever emotional distress that by itself is likely to result in physical injury.
- The Plaintiff must be withint the zone of danger and suffer physical Symptoms.
Negligent Infliction of Emotional Distress
Bystandard
A bystandard can recover even if not withint zone of danger so long as the plaintiff and victim are closely related and the plaintiff was present at teh scene and personally observed the event.
Nevada, defines closely related as being related to the victim by blood or marriage.
Breach
Negligence Per se
When a SOL is established by s statute carrying a criminal penalty, the Plaintiff may use the unexcused violation of the statute to establish the element of duty and breach.
*To establishment per se, P must show he is within the class to be protected and the jury suffered is the type intended to be protected by the statue.
Causation
Proximate Cause
limits liability for unforeseeable or unusual consequence of one’s act.
Survival Action
A victims cause of action will survive her death to permit recovery for all damages from the time of the injury to time of death.
- These actions may be brought on behalf of the decedents and allow for recovery for the decedent pain and suffering as well as recovery for actual damages.
Wrongful Death
Essay: Talk about Survival action then wrongful death.
The measure of recovery in wrongful death action is for pecuniary injury resulting to the next of kin.
- This type of action allows recovery for loso of support and consortium.
- it does not allow any recovery for decedent pain and suffering.
Breach
If the probability and gravity of harm outweighed the utility for their conduct and burden of not performing to conduct.
Tort: Battery
Intentional
Intent requires actual intent or knowledge to a substantial certainty that the touching would occur.
Tort Essay Reminder
1) Remember to always look at all the parties and their relationships.
2) Always think about False Imprisonment, IIED and Negligent infliction of emotional distress.
Tort
Self- Defense
Allows a person to use reasonable force to prevent injury when he reasonably believes he is about to be attacked.
Defamation
First Amendment Concerns
Public Figure/Public Concern
Protects the freedom of speech and additional protection of speech are warranted if Plaintiff is a Public Figure or the issue is of Public Concern.
Public Figure:
1) When he has achieved such a pervasive frame or notorious that he has become a public figure for all purposes, and context, or
2) Where he voluntarily assumes the role in a particular public controversy and thereby becomes a “public figure” for that limited range issues.
Public Concern
* To determine whether matter is of public concern, the court will look at the content, form, and context of publication.
FALSITY
* P must prove falsity
FAULT: (Public Figure)
- the type of fault that P must prove depends on the Plaintiff’s status.
- Malice must be shown in a case involving public figure.
- Malice
= 1) Knowledge that the statement was false, or
= 2) Reckless disregard as to whether the statement was false.
Essay: Defamation
Qualified Privilege (Publishing of Statement)
In certain situations, a qualified privilege exists which allows the publisher o defamatory statement to escape liability.
* a qualified privilege exists only if exercised in a reasonable manner and is lost if speakers acted with malice.
Wrongful Death Defense
Recognizes only allowed to the exten that he deceased could have recovered in the action if he lived.
- in a limited comparative fault jurisdiction contributory negligence can either eliminate or reduce recovery.
