Torts Flashcards

Question

NEGLIGENCE: DUTY STD. OF CARE BY PROFESSIONALS

Answer 1

**_Std. of Care By Professionals to Patients/Clients_** *Care that is used by the **average member** of that **profession** _IN _**similar community*** * Std. is empirical/discoverable * _Industry Std_. is Std. (NOT just some evidence) * _Similar Community_: rural vs. urban * **Exception: Specialists** (brain surgeons) --\> held to **NATIONAL STANDARD** **_Informed Consent By Docs_** * Negligence for a doc not to provide patient w/information about risks * _Exceptions:_ (1) commonly known risks; (2) waiver; (3) incompetent patient; (4) disclosure is harmful.

Answer 2

**_Rescuers and Fetuses_** **_Rescuers:_** injuries to rescuers are ALWAYS (presumptively) “foreseeable.” **_Fetuses_**: negligent Δ injures pregnant lady * **Fetus stillborn:** no recovery; * **Fetus born alive w/damages**: injury to baby is foreseeable; baby can recover. * **Dr. negligently misses birth defect depriving parents opportunity to abort** = parents can recover costs of raising child. * **Dr. Botches sterilization procedure: ** On MBE this injury is foreseeable; **• NYBE:** NO recovery (joy of raising children policy) **_Act of God:_** always foreseeable.

Answer 3

**_Duty to Foreseeable Victims_** *Everyone owes a duty of care to foreseeable victims of their potential negligence.* **Foreseeable Victims:** w/i Zone of Danger **Duty Owed:** level of care given by a _reasonably prudent person_ (RPP) in similar circumstances * RPP: NO allowances for Δ’s shortcomings; * **EXCEPT:** (1) ↑ std. for s*uperior knowledge* (NASCAR driver = higher driving std.); (2) *physical characteristics* (reasonable blind Δ). _E.g._ Psychologist has duty to protect 3rd party from known and dangerous acts of patients.

Answer 4

**_Negligence_** * **Duty** (foreseeable Vs) * **Breach** (conduct falls short; res ipsa) * **Causation** * **Factual** (But-For) * **Legal/Proximate** (Blameworthiness) * **Damages** (shell skull doctrine)

Answer 5

**_Theft of Trade Secrets_** ** Valid Trade Secret Exists:** * **Trade Secret:** private information provides business advantage, protected by Π * Δ Takes the Secret By Improper Means * _Traitorous Insider:_ learned legitimately * _Industrial Spying:_ legal means can be improper if they overcome Π’s reasonable precautions

Answer 6

**_Fraud/Deceit (Intentional Misrepresentation)_** * **Affirmative** Misrepresentation (NOT Silence) * Knew/Believe to be False * *Intent/Recklessness* * Specifically Intended to **Induce Reliance** * On Which Π **Reasonably Relies** * **Always Reasonable to Rely on Facts** * Sometimes Reasonable to Rely on Opinion if _Speaker has Superior Knowledge_ * Dmgs Result **_Fraud/Deceit (Negligent Misrepresentation)_** * *(1) Misrepresentation by ∆ in **business/professional capacity** + (2) Breach, (3) Causaton, (4) Justifiable (5) Reliance & Dmgs* * **Note:** **Available **Only in Commrcial Setting * (No transferred intent if overheard by 3rd party).*

Answer 7

**_Inducing Breach of Contract_** * Valid **contract** between Π and 3rd party * Δ **knows** about contract * Δ **persuades** 3rd party to breach contract (improper to use position w/ Co to develop relatioship) * **Results** in an actual **breach** of the contract **_Exception:_** privilege between Δ and 3rd party; e.g. *advisory/special* relationship (lawyer, relative, priest) **Note:** Also called interference w/ business relations. Contract = Expectancy.

Answer 8

**_1st Amendment Defamation_** * Π must also prove (1) statement was false and (2) Δ is blameworthy * _ Fault:_ * _Public Π_ (Famous or Injects Self Into Public Debate): Δ intentional/reckless disregard of truth * _Private Π_: Δ negligently disregarded truth * Thus**, reasonable mistake is NEVER basis for liability.** * Punitive damages --\> ONLY IF intent or recklessness present (public or private Π).

Answer 9

**_Privacy Torts_** **_Appropriation_**: use of Π name/likeness for commercial advantage (BUT newsworthiness exception for book/newspaper). (**NYBE**: ONLY recognized privacy tort) **_Intrusion_**: objectionable invasion of Π’s reasonable expectation of privacy (e.g. hidden camera). **_False Light_**: objectionable widespread dissemination of major falsehood about Π (not intentional tort) * **Compare w/ defamation:** widespread, (not 1 person); damages for emotional damage (not economic); includes *non-defamatory falsehoods*; no mistake is a defense (not an intentional tort). * Look for Type of Person "minister" & Emotion "very upset" and conflict image from conmmon sense (Ex. Photo of Priest walking by Porn Shop put on billboard) **Disclosure of Private Fact:** objectionable widespread dissemination of confidential information about Π (BUT newsworthiness exception; ALSO dual life not confidential). **Affirmative Defenses:** consent; absolute/qualified privilege (only to false light and disclosure)

Answer 10

**_Affirmative Defenses to Defamation_** * **Consent** * **Truth** * **Absolute & Qualified Privilege** * _Absolute:_ ID of speaker: (1) spouses; (2) gov’t officers w/i scope (includes lawyers in court) * _Qualified:_ contexts where candor encouraged (e.g. recommendations, conversations w/police). Protects reasonable mistakes on relevant topics

Answer 11

_**Defamation: Libel-PRINT) & Slander\_ORAL**_ * (1) defamatory statement (2) published; (3) causes damages (slander ONLY)* **Defamatory Statement:** * Statement that adversely effects Π’s reputation; * Opinion can be defamatory if reasonable party would believe declarant has supporting facts. * **Slander Per Se:** (1) Π’s Business/Profession; (2) Π Committed Serious Crime; (3) Unchastity to a Woman; (4) Π has a loathsome disease; (5) **NYBE:** homosexuality **Publication:** * Disclosure to at least 1 3rd party; intentional/negligent * If statement forces Π to publish the statement herself in order to ascertain the extent of distribution, such publication is attributed to D (“Did D tell you that I . . .” ). **Damages:** * ONLY for slander (NOT per se): specific economic losses

Answer 12

**_Consent By Π w/Legal Capacity_** **Express consent** (authorization for challenged conduct) cannot be obtained by fraud (concealment of STD). **Implied consent:** (1) custom & usage OR (2) reasonable interpretation of Π’s conduct * _Custom_**:** place/activity where challenged invasion is customary (e.g. sports or subway at rush hour). * _Reasonable Interpretation_: Π’s manifestation of conduct perceived by Δ is question of fact for jury **_Protective Privileges_** * Response to immediate/imminent harm w/reasonable belief that the threat is genuine (reasonable mistake OK) * **Appropriate Force**: necessary in circumstances; deadly ONLY to protect life; * **NYBE**: ***Retreat,*** but not at home. **_Necessity (Public/Private) Defense to Intentional Property Torts_** * **Public**: interference to protect public = absolute defense * **Private:** interference to protect self-interest; must pay for actual

Answer 13

**_Trespass to Chattel & Conversion_** *Deliberate interference with personal property* **Private civil remedies for vandalism/theft:** includes (1) damaging or (2) stealing any personal property. **_Trespass to Chattel_** * Harm to the personal property is minor **_Conversion_** * Massive destruction to property or killing a pet. * **Remedy:** full value of property (break it, buy it) ***Mistake** concerning **ownership** is **NOT a defense** “(I thought it was my car.”), so long as act is intentional.*

Answer 14

**_Trespass to Land_** *(1)physical invasion (2) of land* **Physical Invasion**  Δ physically enters land (knowledge irrelevant)  Δ propels something physical onto or over land **Of Land**  Includes the air above (to a reasonable distance), and soil below the land.

Answer 15

**_Intentional Infliction of Emotional Distress_** * (1) Intentional or recklessly outrageous conduct (2) causes Π severe distress* **Intentional Outrageous Conduct** * Purpose of conduct was to cause distress or recklessly so caused * Conduct exceeds bounds of decency * Insults alone are NOT enough. * Common carrier has higher responsibility * **Fragile Class**: what is NOT outrageous to an adult might be outrageous to a child; elderly; known pregnant woman; known hypersensitive Π **Causes Π Severe Distress**

Answer 16

**_Assault_** *(1) Π in apprehension (2) of immediate battery* **Apprehension = Knowledge/Understanding** **Immediate Battery** * Some minimal conduct that makes threat seem real & immediate (NOT words alone) * Words can negate immediacy (“if” “later”)

Answer 17

**_Battery_** *(1) harmful/offensive contact, (2) w/Π’s person* **Harmful/Offensive Contact** * Offensive contact = unpermitted by person of reasonable sensitivity * Includes intent to frighten Π **With Π’s Person** * Includes anything Π is touching or connected to (handbag; kicking dog being walked)

Answer 18

**_3 MAIN Principles:_** (1) NO added benefit for hypersensitive Π; (2) NO incapacity defenses; (3) D acts w/ intent or knowledge of substantial likelihood of harm. * **Battery:** (1) harmful/offensive contact, (2) w/Π’s person * **Assault:** (1) Π in apprehension (2) of immediate battery * **False Imprisonment**: (1) act of restraint (2) confines Π in bounded area * **Intentional *(Reckless)* Infliction of Emotional Distress:** (1) outrageous conduct; (2) causes Π severe distress * **Trespass to Land:** (1) physical invasion (2) of land. * **Trespass to Chattel/Conversion:** deliberate interference w/personal property (minor=TTC; major=Conversion)

Answer 19

**_Consumer Product Injuries_** ** 4 Elements:** * (1) Δ is _merchant;_ * (2) _defective product_ (manufacturing/design); * (3) _defect_ **exist**ed when _sold_; * (4) Π is *_foreseeable user_* making _foreseeable use._

Answer 20

**_When do you have a breach?_** 1. Π **identify** ∆’s culpable **act** 2. Π must given argument **why conduct falls below _standard of care._** “π will argue that this was unreasonable because” 1. Can allude to _custom_ 2. Allude to fact that _precaution would have low cost_ 3. **If π cannot prove** what happened, then allege ***res ipsa loquitur:*** lack of info but for injury speaks for itself 1. Accident is of **type** normally **asso**ciated w/ negligence: 2. Accident is of this **type norm**ally due to negligence of someone in **∆’s position** (i.e. ∆ had control of circumstance)

Answer 21

**_Ultra-Hazardous Activities_** **Elements:** * (1) impossible to make safe; * (2) risk of severe harm; * (3) uncommon in area where occurring **Remember**: Π must still be **foreseeable.** **Ex**. blasting/explosives; toxic chemicals; nuclear, brakes, cancer treatments

Answer 22

**_Injuries Caused by Animals_** * **Domestic**: ONLY S/L if **Δ knew** of *_dangerous propensity_* * Tresspassing ∏ can prevail, if ∆ uses vicious to protect property (can only use reasonable force) * **Wild /Trespassing Cattle:** S/L for animals kept by Δ (incl rats)

Answer 23

**_Nuisance_** ## Footnote **Balancing Test:** whether Δ’s activities **UNREASONABLE** **INTERFERES **w/Π’s _ability_ to **enjoy** land (injunctive relief)

Answer 24

**_Indemnity_** * **Application:** Contract, Vicarious Liability, S/L for Products. * Ex. vicarious liability imposed a Co. through permissive use bailor statute entitles Co. to seek indemnification from tortious employee. * **Result:** *_**Shifts** the entire **loss**_* among tortfeasors * **Note:** Comparatrive Contribution Supplants Indemnification Rules

Answer 25

**_Contribution_** * **Application:** Applies only when **both ∆s** have **Measurable Degree** of culpability for tort * ∆ must be originally liable to π * Not applicable to intentional torts * **Result: **Apportions responsibility among those at fault. * _Comprative Contribution:_ Relative Fault of ∆s * _Equal Shares_: Equal regrdless of degrees of fault * **Note:** **DOES NOT AFFECT** HOW MUCH ∏ RECEIVES only determines total $ that ∆ must pay

Torts Flashcards

(49 cards)