Torts Flashcards
(122 cards)
1
Q
Requirements for negligence?
A
A plaintiff must prove: (1) duty, (2) breach, (3) causation [actual and proximate], and (4) damages
2
Q
To make a prima facie case for negligence, what must a party offer?
A
Sufficient evidence so that a reasonable jury could find that ALL of the elements have been met
3
Q
Negligence: What are the two duty considerations?
A
(1) To whom the duty is owed and (2) the applicable standard of care
4
Q
Negligence: Who is a duty owed to? [Majority view]
A
Foreseeable plaintiffs in the zone of danger [Majority/Cardozo]
5
Q
Negligence: Who is a duty owed to? [Minority view]
A
Everyone (including unforeseeable plaintiffs) [Minority/Andrews]
6
Q
Negligence: General rule for duty
A
Reasonable prudent person standard (reasonably prudent person under the circumstances)
7
Q
Negligence: What does a reasonably prudent person do?
A
Takes appropriate measures to avoid foreseeable risks
8
Q
Negligence: Are physical characteristics taken into account when considering duty?
A
Taken into account if D is physically impaired
**Mental characteristics are NOT taken into account
9
Q
Negligence: Does a defendant have a duty to take affirmative action to help plaintiff?
A
NO (but there are exceptions)
10
Q
Negligence: Exceptions where defendant does have an affirmative duty to help plaintiff?
A
(1) Special relationship [parent-child, business or landowner holding premises out to public]
(2) Defendant caused the danger
(3) Defendant volunteered assistance (must proceed with reasonable care)
(4) Duty imposed by law
11
Q
Negligence - Duty to control third parties?
A
Generally, there is not a duty to control the conduct of third parties
However, one has a duty to act reasonably to control a third party if one has a special relationship with the third party (e.g, owner and the occupiers of his land, a prison and its prisoners, a mental institution and its patients)
12
Q
Negligence: What is the general duty standard for children?
A
Subjective standard - duty of care of a hypothetical child of like age, intelligence, and experience acting under similar circumstances
13
Q
Negligence: What is the exception to the general duty standard for children?
A
Adult activities exception - if a child is engaged in an adult activity (activity that is typically only performed by adults), the child will be held to the reasonably prudent person standard of an adult
Adult activities = driving cars, boats, snowmobiles; shooting a gun
14
Q
Negligence: What is the standard of care for professionals?
A
Duty to act with the knowledge and skill as an average member of that profession practicing in a similar community
Expert testimony is generally required to show that the professional complied or breached the standard of care
15
Q
Negligence: What is the standard of care for a professional specialist?
A
Duty to act with the knowledge and skill of an average member of the profession practicing the specialty
16
Q
Negligence: What is the standard of care for medical doctors?
A
Duty to act with the knowledge and skill of the average qualified doctor (national standard)
17
Q
Negligence: Duty to obtain informed consent for medical doctors
A
A doctor has a duty to obtain informed consent from his patient before treatment, which requires the doctor to disclose risks of treatment that a reasonable patient would want to know
18
Q
Negligence: Can you consider custom when deciding what standard of care is?
A
Custom is evidence of duty of care
**In professional malpractice cases, it is CONCLUSIVE evidence
19
Q
Negligence: Fireman’s Rule (Duty)
A
Firefighters, police officers, and other professional risk-takers who are injured in the line of duty are prohibited from suing for negligence for injuries sustained stemming from the inherent risks they assume with their profession
20
Q
Negligence: What is the standard of care for a landowner?
A
Depends on status of the plaintiff: (1) undiscovered trespasser; (2) discovered trespasser; (3) licensee; or (4) invitee
21
Q
Negligence: What is the standard of care for a landowner to an undiscovered trespasser?
A
An undiscovered trespasser is one who comes onto the land without permission or privilege and who the premises possessor does not know about
Landowner owes NO duty of care
22
Q
Negligence: What is the standard of care for a landowner to discovered or anticipated trespasser?
A
A discovered or anticipated trespasser is one that the premises possessor knows of or should know of
No duty of care for natural conditions
Artificial conditions: duty to warn of or make safe conditions landlord knows about if non-obvious and unreasonably dangerous
Active operations: duty of reasonable care
23
Q
Negligence: What is the standard of care for a landowner to a licensee?
A
A licensee is someone who is invited on the owner’s property as a social guest
Landowner must warn or make safe ALL concealed dangers that landowner knows of (including artificial, natural, unreasonably dangerous, and not unreasonably dangerous)
Active operations: duty of reasonable care
24
Q
Negligence: What is the standard of care for a landowner to an invitee?
A
An invitee is someone that either enters to confer an economic benefit (e.g., customers of a store) or enters land that is open to the public at large
Landowner must warn or make safe ALL concealed dangers that landowner knows of (including artificial, natural, unreasonably dangerous, and not unreasonably dangerous) AND
Landowner has a duty to make reasonable inspections of the property to discover concealed dangers and take affirmative action to make safe
Active operations: duty of reasonable care
25
Negligence: Landowner standards of care apply to POSSESSORS of land (landlord, tenant business owner, etc.)
26
Negligence: Attractive nuisance doctrine (for trespassing children) [standard of care]
Premises possessor is liable if:
(1) Knows or has reason to know kids are likely to trespass;
(2) Condition poses unreasonable risk of serious injury or death;
(3) Because of their youth, kids unlikely to realize risk or discover danger;
(4) Burden of eliminating danger is slight compared to risk; AND
(5) Owner fails to use reasonable care to eliminate danger or protect kids from it
**Does not apply for "adult activities"
27
Negligence: What is the standard of care for a lesee (tenant) of realty?
General duty to maintain premises AND must abide by same duties as landowners
28
Negligence: What is the standard of care for a lessor (landlord) of realty?
In addition to the duties owed by landowners,
(1) Warn of existing dangers of which he knows or should know lesee is unlikely to discover
(2) Repair not negligently - if the lessor promises to repair, he must do so not negligently
(3) Maintain common areas with reasonable care
29
Negligence: What does negligence per se establish?
Duty and breach
**Still need to prove causation (actual and proximate) and damages
30
Negligence: How do you use negligence per se?
Negligence per se is used to prove duty and breach when a defendant has violated a statute; to use, plaintiff must show:
(1) Statute's purpose is to prevent the type of harm plaintiff has suffered;
(2) Plaintiff is in the class of persons the statute seeks to protect; and
(3) Defendant violated the statute, without excuse
31
Negligence: When will defendant's violation of a statute be excused?
(1) Complying with the statute would create a greater risk of harm
(2) Impossible to comply with statute
**Can't substitute standard of care with statute even when other negligence per se elements are met
32
Negligence: When does breach occur?
When the defendant's conduct fails to conform to the applicable standard of care
33
Negligence: When can plaintiff use custom to show breach of duty?
Plaintiff may use custom or usage to establish how a reasonable person should have behaved under the circumstances
**Not conclusive to show certain conduct = not negligence because the entire industry may be acting negligently
34
Negligence: Res ipsa loquitur [breach]
Can be used to establish breach when P does not have information about D's breach; requires:
(1) Accident is of a type that does not ordinarily occur in the absence of negligence AND
(2) Other causes, including conduct of plaintiff and third persons, are sufficiently eliminated by the evidence (such as that D had exclusive control)
35
Negligence: What happens if P can show res ipsa loquitur?
P has made a prima facie case --> case should go to trial --> NO directed verdict
**Doesn't mean P will win (just that it should go to trial)
36
Negligence: Causation
Plaintiff must show that D's conduct was the actual cause AND the proximate cause of her injury
37
Negligence: Actual cause
But-for test: but for the defendant's conduct, the injury to plaintiff would not have resulted
38
Negligence: What if there are alternative causes where only one is at fault?
When there are two acts, only one of which could have caused the injury, but it is unknown which act caused the injury:
Burden of proof shifts to each defendant to show that the other caused the harm
39
Negligence: What if the injury has multiple causes?
Where two or more defendants are at fault and their conduct combines to cause harm to the plaintiff:
All defendants are jointly and severally liable as their actions were each a SUBSTANTIAL FACTOR in causing the injury to the plaintiff
40
Negligence: Proximate Cause
Injury must be a FORESEEABLE result of the breach
**A defendant is NOT liable for harms that are too remote from defendant's conduct
41
Negligence: Eggshell Plaintiff Rule [proximate cause]
Defendant is also liable for any additional unforeseen physical consequences to plaintiff caused by a weakness or susceptibility of the plaintiff
**"Defendant takes his plaintiff as he finds him"
42
Negligence: What is an intervening cause? [proximate cause]
Any act that occurs after the defendant's breach that contributes to the harm
Foreseeable = natural responses or reactions to the situation
43
Negligence: What is a foreseeable intervening cause? [proximate cause]
Defendant is liable for all FORESEEABLE intervening causes
Examples:
(1) Subsequent medical malpractice
(2) Negligence by rescuers
(3) Disease or subsequent accident that occurs after an accident
(4) P's injuries running from the danger
(5) An injured rescuer's injuries
44
Negligence: What is an unforeseeable intervening cause? [proximate cause]
Defendant is generally NOT liable for superseding intervening causes that are not a normal response or reasonably foreseeable reaction to the situation created by D's conduct
**Often results from an interruption in the chain of causation
**Usually intervening criminal acts
45
Negligence: When is an intervening criminal act foreseeable? [proximate cause]
(1) D should have anticipated the criminal act
OR
(2) D's conduct makes the criminal act more likely to occur
46
Negligence: What do damages require?
Actual injury to P
**No punitive or nominal damages
**No purely economic loss
47
Negligence: What type of damages can P recover?
Plaintiff can be compensated for all damages (past, present, and prospective), both economic (medical expenses, loss of salary, etc.) AND non-economic (pain and suffering, loss of ability to enjoy life, etc.)
48
Negligence: How does P establish damages?
In addition to establish cause and foreseeable, damages must also be able to be calculated with CERTAINTY and plaintiff must MITIGATE his damages
49
Negligence: Can you get punitive damages?
NO (only if wanton and willful or malicious)
50
Negligence: When is D liable for negligent infliction of emotional distress [NIED]?
When D engaged in negligent conduct that caused plaintiff to suffer serious emotional distress
(1) Zone of danger cases
(2) Bystander cases
(3) Business relationship cases
51
Negligence: Negligent Infliction of Emotional Distress - Zone of Danger Cases
(1) Negligence by defendant AND
(2) Plaintiff suffers physical symptoms from its emotional distress AND
(3) Plaintiff is in zone of danger (physically endangered)
52
Negligence: Negligent Infliction of Emotional Distress - Bystander Cases
(1) Negligence by defendant AND
(2) Plaintiff and person injured by D are closely related AND
(3) Plaintiff was present at the scene and personally observed or perceived the event
**Most jurisdictions do not require physical symptoms
53
Negligence: Negligent Infliction of Emotional Distress - Business Relationship Cases
Highly foreseeable that based on the nature of the relationship, careless performance by D will produce emotional distress
Examples: patient/medical lab, customer/funeral parlor
54
Negligence: Defenses to Negligence
(1) Comparative negligence
(2) Contributory negligence
(3) Assumption of the risk
55
Negligence: Contributory Negligence [defense to negligence]
Where any negligence on part of the plaintiff that contributes proximately to his injuries COMPLETELY bars his recovery
**Abolished in most jurisdictions
**Do not apply on MBE unless told to!
56
Negligence: Comparative Negligence [defense to negligence]
When the plaintiff's own negligence has also contributed to his injuries, but it does not completely bar recovery (liability is divided between P and D in proportion to their relative degrees of fault)
57
Negligence: Pure Comparative Negligence [defense to negligence]
Allows recovery in PROPORTION OF FAULT regardless of how negligent the plaintiff was [plaintiff's recovery reduced by proportionate negligence]
**Default on MBE unless otherwise stated
58
Negligence: Partial Comparative Negligence [defense to negligence]
If plaintiff contributed more than 50% to his own injury, plaintiff's claim is barred
If plaintiff contributed less than 50% to his own injury, damages reduced by percentage of fault attributable to him
Jurisdictions differ on whether 50% = D can recover or not
59
Negligence: Assumption of the Risk [defense to negligence]
Plaintiff may be denied recovery if he assumed the risk of any damage caused by D's act where he (1) knew of the risk AND (2) voluntarily consented despite the risk
May be express (by agreement) OR implied (where an average person would appreciate the risks involved)
60
What does strict liability establish?
Duty and breach
**Still need to prove causation and damages
61
What does strict liability apply to?
(1) Animals
| (2) Ultrahazardous/abnormally dangerous activities
62
Strict Liability: Animals (Trespass)
Reasonably foreseeable damage done by a trespass of his animals (regardless of wild or domestic animals)
63
Strict Liability: Animals (Wild Animals)
Non-trespass injuries caused by wild animals that result from a dangerous propensity that is typical of the species
Wild animals include skunk, bears, snakes, and monkeys (even if they are pets)
64
Strict Liability: Animals (Domestic Animals)
Injuries caused by domestic animals ONLY IF the owner knew or had reason to know of that particular animal's dangerous propensities that are not common to the species
Domestic animals include pets (dogs, cats, rabbits) and farm animals (sheep, rabbits, horses, cows, bulls, honeybees)
65
Is strict liability available to a trespasser?
NO (the trespasser can sue under a theory of negligence, but not strict liability)
66
Strict Liability: Ultrahazardous/Abnormally Dangerous Activities
An activity is abnormally dangerous if it is:
(1) An activity that creates a foreseeable risk of serious harm;
(2) Risk cannot be eliminated by the exercise of reasonable care; AND
(3) Activity is not common in the community
**Liability only extends to foreseeable plaintiffs [pretty broad]
Examples: blasting, mining, explosives, nuclear energy, etc.
67
Strict Liability - When does it not apply?
Harm must result from the kind of danger to be anticipated from the dangerous activity (or animal) including harm caused by fleeing from the perceived danger
Strict liability does NOT apply when the injury is caused by something other than the dangerous aspect of the activity (e.g., dynamite truck blows a tire and hits a pedestrian but does not explode)
68
Strict Liability: Defenses
Assumption of the risk
**NOT defenses: contributory fault, exercise of reasonable care
69
Types of Actions for Product Liability
(1) Strict products liability
(2) Negligent products liability
(3) Breach of warranty
(4) Misrepresentation
(5) Intent
70
Strict Products Liability
A commercial supplier of a product is liable without fault for personal injuries caused by a defective product
Requires PDF:
(1) PROPER parties - plaintiff can be any consumer, user, or bystander who suffers an injury as a result of the product; defendant must be a MERCHANT (commercial supplier - someone who routinely deals in goods of this kind)
(2) Product was DEFECTIVE from the time it left the manufacturer or seller's hands
(3) Plaintiff has to make FORESEEABLE use of the product at the time of the injury (can even be a foreseeable misuse)
71
Strict Products Liability: Actual Cause
Plaintiff must show that BUT FOR the defect, he would not have been injured and that the defect existed at the time it left defendant's control [not significantly altered since it left defendant's control]
72
Strict Product Liability: Damages
Physical injury or property damage must be shown (no recovery for purely economic loss)
73
Strict Products Liability - Types of Defects
(1) Manufacturing defect
(2) Design defect
(3) Lack of warning/instructions
74
Strict Products Liability - Manufacturing Defect (Types of Defects)
(1) Product differs from its intended design (some defect in manufacturing/production) AND (2) it is more dangerous than expected (if made properly)
75
Strict Products Liability - Design Defect (Types of Defects)
Product comes out exactly as the manufacturer intended (but design is unreasonably dangerous) and there is a reasonable cost-effective alternative design to make it safer
76
Strict Products Liability - Lack of Warning/Instruction (Types of Defects)
Plaintiff was not warned of the risks regarding use of the product which are not obvious to an ordinary user
**If risk is obvious, no warning is necessary
**If there is a warning, examine the size of the warning, color, if there are pictures, etc. to see if it's adequate
77
Who is liable under strict products liability?
Any commercial seller in the distribution chain (including a retailor or wholesaler)
78
Defenses to strict product liability
(1) Assumption of risk
(2) Comparative negligence
(3) Unforeseeable misuse of a product
79
Negligence Product Liability
A negligence claim based on a defective product requires: (1) a duty owed to plaintiff; (2) a breach of that duty; (3) causation (actual and proximate cause); (4) damages
**Retailers and wholesalers are rarely liable under a negligence theory for products liability since they only have a duty to inspect or warn of known dangers
**Manufacturers will still likely be liable under a negligence theory
80
Product Liability - Breach of Warranty
May be based on a breach of express warranty or an implied warranty
81
Product Liability - Breach of Warranty (Implied Warranty of Merchantability)
Implied warranty of merchantability requires that ALL goods sold by a merchant (a person dealing in goods of the kind) MUST be fit for their ordinary purpose
82
Product Liability - Breach of Warranty (Implied Warranty of Fitness for a Particular Purpose)
Created when: (1) a seller knows or has reason to know of the buyer's particular purpose for which the goods are required AND (2) the buyer relies on the seller's skill or judgment to select or furnish suitable goods
83
Product Liability - Breach of Warranty (Express Warranty)
Created when: (1) a seller makes an affirmation of fact, promise, or description, or provides a sample; (2) which relates to the goods; and (3) it becomes part of the basis of the bargain
84
Product Liability - Breach of Warranty Damages
When a breach occurs, the seller may be held liable for any damages resulting from personal injury, property damage, AND economic loss
85
Defenses to Product Liability - Breach of Warranty
(1) Assumption of the risk
(2) Comparative negligence/contributory negligence for product misuse (unless plaintiff's negligence/misuse was foreseeable)
(3) Failure to give notice of breach within a reasonable time (under the UCC)
(4) Disclaimers are upheld for economic loss but are generally rejected in personal injury cases
86
Products Liability: Indemnification
Where there is more than one tortfeasor, responsibility for damages may be shifted among those involved
In a products liability case, a retailer may receive indemnification from the manufacturer if: (1) both are held jointly liable AND (2) the manufacturer is responsible for the defect
87
Products Liability: Compliance with Government Regulations
A manufacturer's failure to comply with a government regulation conclusively proves a defect
However, compliance with a government regulation is NOT conclusive, but rather evidence that the product is not defective
88
Product Liability - Misrepresentation of Fact
Seller will be liable for misrepresentations of fact concerning a product when the statement was a (1) material fact concerning quality or uses of goods [mere puffery is insufficient]; (2) seller intended to induce reliance by the buyer; (3) seller did in fact induce reliance
P still must prove causation and damages
89
Negligent Misrepresentation
(1) Misrepresentation (false statement of material fact) by defendant in a business or professional capacity;
(2) Breach of duty towards a particular plaintiff;
(3) Causation;
(4) Justifiable reliance by plaintiff; AND
(5) Pecuniary damages to plaintiff
**Liability will attach only if reliance by this PARTICULAR plaintiff could be contemplated [confined to misrepresentations made in a commercial setting]
90
Intentional Misrepresentation (Common Law Fraud)
(1) Misrepresentation (by actions or concealment) of a material fact;
(2) Scienter (knowledge of statement's falsity or reckless indifference to the truth);
(3) Intent to induce plaintiff's reliance on the misrepresentation;
(4) Causation (actual reliance);
(5) Justifiable reliance by plaintiff; AND
(6) Damages (plaintiff must suffer actual pecuniary loss)
**NO defenses
91
Misrepresentation: Is there a duty to disclose information?
Generally no, UNLESS:
(1) A fiduciary relationship exists
(2) Necessary to correct an earlier mistake
(3) Active concealment of a material fact occurs
(4) A person is selling real property and knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover)
92
Private Nuisance
Substantial, unreasonable interference with another private individual's use or enjoyment of his land or land in which he has an interest
**Substantial interference = interference that is offensive or annoying to AVERAGE person in community
**Unreasonable interference = harm to plaintiff > utility of D's conduct OR harm to P is greater than P should be required to bear without consideration
93
Public Nuisance
Substantial, unreasonable interference with the health, morals, welfare, safety, or property rights of the community
**Interference: location of the nuisance, frequency and duration, degree of damage, social value of activity
**Recovery by a private party is only available if the private party suffered damage that is different IN KIND and not merely in degree from that suffered by the public
94
Remedies for Nusiance
(1) Damages
| (2) Injunctive relief
95
Defenses to Nuisance
(1) Legislative authority [persuasive but not absolute]
(2) Assumption of the risk and comparative negligence [if plaintiff's case rests on a negligence theory]
(3) Coming to the nuisance is a bar ONLY if P came to the nuisance for the sole purpose fo bringing a harassing suit
96
Common Law Defamation
Occurs when a false defamatory statement of or concerning plaintiff is published to a third party causing damage to plaintiff's reputation
97
Common Law Defamation - Defamatory Statement
Defamatory statement = statement that adversely affects reputation (factual representation reflecting adversely on character) [pure statement of opinion = NOT defamatory]
**Opinion is only actionable if it implies specific facts
98
Common Law Defamation - Of or Concerning Plaintiff
Plaintiff must be IDENTIFIABLE
**Small group = everybody has claim
**Large group = nobody has claim
99
Common Law Defamation - Published to a Third Party
Publication must be made to a third party (someone who is not the plaintiff) and third party must understand statement
Can be made intentionally (knowledge of falsity) or negligently (insufficient care)
**Repeaters of the defamatory statement can be liable
**Intent to publish the statement, not intent to defame
100
Common Law Defamation - Causation
Statement need not have actually harmed P's reputation, but P must show that it would have had it been believed
101
Common Law Defamation - Libel
Written or printed publication of a defamatory statement [including any communication embodied in physical form, like radio or TV broadcasts]
**Plaintiff does not need to prove special damages and general damages are presumed
102
Common Law Defamation - Slander
Spoken or verbal defamation
**Plaintiff must prove special damages, which the plaintiff must have suffered some pecuniary loss as a result of the slander
103
Common Law Defamation - Slander Per Se
Damages are presumed; slander per se is established for language that is [CLUB]:
(1) Adversely reflects on the plaintiff’s fitness to conduct his business or profession;
(2) Alleges the plaintiff has a loathsome disease;
(3) Imputes morally culpable criminal behavior to the plaintiff; OR
(4) Imputes serious sexual misconduct to the plaintiff
104
Common Law Defamation - Matter of Public Concern
If the defamation is a matter of public concern, the plaintiff must (1) prove the elements of common law defamation AND (2) establish fault on the part of the defendant
105
Common Law Defamation - Matter of Public Concern (Public Figure)
Plaintiff is a public figure when he has achieved pervasive fame or notoriety or voluntarily assumed a role in a public controversy
Actual malice standard: when the plaintiff is a public figure, actual malice must be proven, which exists when the defendant made the statement with either: (1) knowledge that it was false or (2) reckless disregard as to whether it was true or false
Damages are presumed if actual malice is shown
106
Common Law Defamation - Matter of Public Concern (Private Person)
Any person not considered a public figure
Negligence standard: when the plaintiff is a private person only negligence regarding the falsity of the statement must be proven if the statement involves a matter of public concern
Only actual injury damages are recoverable (not necessarily pecuniary); but, if malice exists, damages are presumed and punitive damages are allowed
107
Defenses to Defamation
(1) Consent
(2) Truth
(3) Absolute privilege [for spouses and officers of government in connection with official work]
(4) Qualified privilege [when public interest in encouraging candor]
108
Defenses to Defamation - Qualified Privilege
Examples of qualified privilege: (1) when someone is speaking as a past employer of the plaintiff for a job reference OR (2) when someone is speaking to a police officer investigating the crime
Qualified privilege ONLY applies to statements made in good faith and relevant in scope
Common interest privilege: qualified privilege for statements made to colleagues within same organization
109
Privacy Torts - Appropriation
Unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage
**Newsworthiness exception to appropriation
**Appropriation not limited to celebrities
110
Privacy Torts - Intrusion on Plaintiff's Affairs or Solitude
Intrusion into a plaintiff’s private affairs, where one has a reasonable expectation of privacy, that is highly objectionable
**Examples: eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct
**Photographs taken in public places are NOT actionable
111
Privacy Torts - Placing Plaintiff in False Light
Occurs where (1) one attributes to plaintiff views he does not hold or actions he does not take; (2) the false light is objectionable to a reasonable person under the circumstances; AND (3) the publication is public
**Public interest: if the matter is of public interest, actual malice must be proved (First Amendment limitation)
**Public figures: plaintiff must prove actual malice on the part of the defendant
112
Privacy Torts - Publicity of Private Life (Disclosure)
Public disclosure of private facts that are not a matter of legitimate public concern, the release of which is objectionable to a reasonable person where the disclosure is communicated to the public at large, and not just to a single person or small group of persons
**Newsworthiness exception
**Disclosure must be of a truly confidential fact
113
Affirmative Defenses to Privacy Torts
(1) Consent
| (2) Absolute/qualified privilege for false light/disclosure claims
114
Malicious Prosecution Claim
(1) Institution of criminal proceedings (and civil proceedings in most jurisdictions) against plaintiff;
(2) Termination of proceedings in plaintiff’s favor;
(3) Absence of probable cause for the institution of the proceedings;
(4) Improper purpose of the accuser in bringing suit; AND
(5) Damages suffered by the accused
**Prosecutors are immune from liability
**Defendant can be any person actively involved in bringing about the proceedings
115
Abuse of Process
When the defendant intentionally misuses legal process (e.g., discovery tools, depositions, etc.) for an ulterior purpose and the defendant committed a willful act in a wrongful manner that caused damage to the plaintiff
116
Tortious Interference with Business Relations
(1) Existence of a valid contractual relationship between the plaintiff and a third party or a valid business expectancy of the plaintiff;
(2) The defendant knew or should have known of the relationship or expectancy;
(3) Intentional interference by the defendant inducing breach or termination of the relationship or expectancy; AND
(4) Damages
**Defendant’s conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests (fair competition), particularly if the defendant uses justifiable and fair methods
117
Vicarious Liability
Occurs when one person commits a tortious act against a third party, and another person is liable to the third party for the tortious act
**Imposed based on a special relationship between the tortfeasor and the person found vicariously liable
118
Respondeat Superior
When an employee commits a tort during the course and scope of his employment, his employer will be jointly liable with the employee
**Employee: one who works subject to the close control of the person who hired him
**Scope of employment: tort is within the scope of employment if the tortfeasor was acting with the intent to further the employer’s business purpose, even if the act itself was forbidden
**Note: Intentional torts usually are outside the scope of employment unless they were foreseeable or they were committed for the purpose of serving the employer
* *Independent contractor: one who hires an independent contractor is generally not vicariously liable for the torts of that person unless:
(1) The employer is negligent in hiring that person OR
(2) The duty is nondelegable because work occurs in a public place or the work involves inherently dangerous activities, such that there is a peculiar risk of physical harm to others [duty generally is nondelegable if it involves safety]
**Note: Business owner can be held liable if independent contractor working on business premises and hurts customer
119
Parent's Vicarious Liability for Child
A parent is not vicariously liable for the tortious conduct of their child
**However, a parent may be directly liable for their own negligence (e.g., failure to supervise)
120
Multiple Defendants: Joint and Several Liability
Exists where two or more negligent acts combine to proximately cause an indivisible harm, making each defendant liable for the entire harm
**Plaintiff can recover the entire loss from any defendant, regardless of that defendant’s share of the total responsibility
121
Multiple Defendants: Contribution
Allows a defendant who pays more than his pro rata share of responsibility because he is jointly and severally liable, to obtain reimbursement from another defendant for any amount paid over his pro-rata share
122
Multiple Defendants: Indemnity
• Indemnity: occurs when the responsibility for the entire loss is shifted from one tortfeasor to another
o Available when: (1) vicarious liability or (2) strict liability
