Torts Flashcards

Question

# False Imprisonment "Bounded Area"

Answer 1

For an area to be "bounded," freedom of movement must be limited in all directions. There must be no reasonable means of escape known to the Plaintiff. The bounded area can be vague - doesn't have to be particularly defined * Note: An area is not considered bounded if there's a reasonable means of escape that the Plaintiff can reasonably discover.

Answer 2

(1) Dangerous; (2) Disgusting; (3) Humiliating; (4) Hidden.

Answer 3

The Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if the Defendant acted maliciously.

Answer 4

(1) An act by the Defendant amounting to **extreme and outrageous conduct;** and (2) The Plaintiff must suffer **severe** emotional distress. (3) Actual damages required.

Answer 5

Extreme and outrageous conduct if it exceeds all bounds of decency tolerated in a civilized society. * Mere insults are **not** considered outrageous. * But, insults + threats, then the conduct can become extreme and outrageous conduct.

Answer 6

Conduct that is not normally outrageous may become so if it: (1) Continous in nature; * Debt collection by harassment - calling at 3am making threats to repossess the car, claiming they need the money by the next day. (Did it exceed all the bounds of decency? Debatable) But, if they called repeatedly, persistent then it becomes outrageous. (2) Committed by a certain type of Defendant (common carriers or innkeepers); **or** * Transportation companies and hotels are obligated to treat customers w/ courtesy and respect. So when they deliberately do something w/ the goal of causing distress it will be considered extreme & outrageous. (3) Directed toward a certain type of Plaintiff in a fragile class (children, elderly, pregnant women). * Targeting a 5 year old and deliberately trying to distress him with vulgar words. OUTRAGEOUS. * Same goes for elderly. * You must know the woman is pregnant to trigger this rule. (4) Targeting known sensitivity is considered outrageous conduct. * D having advanced knowledge of P's peculiar sensitivity and triggering it. Ex. Coworker knowing about their colleagues phobia then purposely triggering it.

Answer 7

Plaintiff has no obligation to prove the severe emotional distress in any particular way. ## Footnote "Plaintiff was **mildly** annoyed by D's conduct, so she sued for IIED". No claim because the distress must be **severe**.

Answer 8

Unlike for other intentional torts, **recklessness** as to the effect of the Defendant's conduct will satisfy the intent requirement.

Answer 9

Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury generally isn't required. The more outrageous the conduct, the less proof of damages required. ## Footnote IIED is the only intentional tort to the person that requires damages.

Answer 10

When the Defendant's conduct is directed at a third person, and the Plaintiff suffers severe emotional distress because of it, the Plaintiff may recover by showing either the prima facie case elements of emotional distress; or that: (1) they were present when the injury occurred; (2) the distress resulted in bodily harm or the Plaintiff is a close relative of the third person; and (3) the Defendant knew these facts. ## Footnote IIED is a fallback tort position. If another alternative in the Q is a tort that will also allow the P to recover, it should be chosen over IIED.

Answer 11

(1) **Physical invasion** (2) **Of land** * By **person** or **object** that is **tangible** * Awareness of boundary **NOT** required, but deliberate act is **required** * Damage **NOT** required * **Air** above/**soil** beneath to reasonable distance * Claimant must be person with right to possession of property, does not necessarily need to be the owner

Answer 12

Intentional interference with Plaintiff's personal property that warrants Defendant pay damages * **Interference** = directly damaging OR dispossession * Intent to trespass **NOT required** but intent to do the act of interference **required** * Defendant's mistaken beleif they own the chattel is **NO defense** * Actual damages **NOT** required | Small harm (compared to Conversion)

Answer 13

Intentional interference with Plaintiff's personal property *so serious* that warrants Defendant pay property's FULL value * Act of conversion = Theft; Wrongful transfer; Wrongful detention; Substantially changing; Severely damaging; Misusing chattel * Intent to do the act of interference **required** * Defendant's mistaken beleif they own the chattel is **NO defense** * Only tangible personal property and intangibles that have been reduced to physical form (promissory note) are subject to conversion * Plaintiff may recover **damages** (FMV at time of conversion) or **possession** (Replevin) | Big harm (Compared to trespass to chattels)

Answer 14

* Defense to **all** intentional torts * Plaintiff must have **legal capacity**: not drunk, disabled, children * Person with limited capacity can consent but only to things within scope of their understanding * **Express Consent** = Words giving permission (Oral or Written) unless obtained by Fraud, Duress, or if Mistake if defendant knew of and took advantage of the mistake * **Implied Consent** = A reasonable person would infer from custom and usuage (Hockey) OR body language consent (Private setting on a date) * **Scope of Consent** = exceeding scope results in liability (Doctor gives you a nose job when you said "Yes" to getting only a knee surgery)

Answer 15

**Types:** * Self-Defense * Defense of Others * Defense of Property **Requirements:** (1) Threat from **Plaintiff** (2) Defendant must respond in **heat of the moment**, i.e., while threat is in progress or imminent (Not too soon/late) (3) Defendant must have reasonable belief the threat is **genuine** (4) Amount of force when the preconditions are met, is only the force **necessary to the circumstances** - 🔥 with 🔥 not 💣 - 👋 with 👋 - 🔪 with 🔫 - Majority: No duty to retreat - No use of deadly force to protect **property**🏠 - Presumption that home intruder poses a deadly threat unless visibily not deadly threat - Reentry onto land: Common law = one could use force to reenter land only when an intruder came into possession tortiously (trespass). Modern law = ejectment for recovering possession of real property. Self-help not allowed.

Answer 16

* Allows a merchant or any store owner to detain a customer if owner has a reasonble belief customer has shoplifted property * If detention is limited to a reasonable amount of **time**, **manner**, and **suspicion**, NO liability for false imprisonment even if customer is innocent

Answer 17

* Only apply to (1) Trespass to land; (2) Trespass to chattel; (3) Conversion * **Types:** **(1) Public Necessity**: Emergency situation and Defendant commits one of the property torts during the emergency to protect the community as a whole; Absolute defense! **(2)** **Private Necessity**: Defendant acts in emergency to protect own interest. Action was to prevent serious harm to a limited number of people. - Actor must pay compensatory damages for any injury they cause unless the act was to benefit the property owner - NOT liable for nominal/punitive damages because Defendant had a privilege to enter - Can remain as long as emergency continues - Limited or qualified defense! ## Footnote This privilege trumps a property owner’s right to defend his property

Answer 18

(1) A **duty** on the part of the Defendant to conform to a specific standard of conduct for protection of the Plaintiff against unreasonable risk of injury; (2) A **breach** of that duty by the Defendant (3) The breach is the **actual** and **proximate cause** of the Plaintiff's injury; (4) **Damages**. ## Footnote Duty - Questions of law Breach - Predominately about facts Causation - Logic and policy Damages - Facts and law

Answer 19

A duty of care is owed to **all foreseeable** 👀Plaintiffs. If the Defendant's conduct creates an **unreasonable risk of injury** to persons in the position of the Plaintiff, the general duty of care extends from the Defendant to the Plaintiff. The extent of the duty is determined by the applicable standard of care. When confronted w/ a negligence questions, you should ask: (1) To whom do you owe a duty? (2) What is the applicable standard of care (risk reduction)? ## Footnote Duty is a legally imposed obligation to take risk reducing precautions for benefit of others.

Answer 20

Only to foreseeable victims within the "zone of danger". Note: Look to the distance of where the victim was initially - were they in the zone of danger? ## Footnote You do not owe a duty to unforeseeable victims. Unforseeable victims will always lose negligence claims.

Answer 21

A rescuer is a foreseeable Plaintiff when the Defendant negligently put themselves or a third person in peril (danger invites rescue).🏃⛑️ Note: Rescuers do not have to be in the zone of danger because danger invites rescue - once the catastrophe occurs rescuers will go into the zone to help. | Not firefighters or police officers

Answer 22

Firefighters 🚒 and police officers👮 are barred by the "firefighter's rule" from recovering for injuries caused by the inherent risks of their jobs - even if the risk was created by the negligence of the property possessor.

Answer 23

A third party for whose economic benefit a legal or business transaction was made (i.e beneficiary of a will) may be a foreseeable Plaintiff.

Answer 24

* All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person acting under similar circumstances. * The **reasonably prudent person standard** is an **objective** standard, measured against what the average person would do. * A defendant's mental deficiencies and inexperiences are not taken into account. (low intelligence is no excuse). ## Footnote - Someone who is developmentally disabled will be held to the standard of a reasonably prudent person. - Intoxication/on drugs not an excuse. - Uniformed people not an excuse. - Uneducated people not an excuse. - Amature, clumsy not an excuse. - EVERYONE NEEDS TO BEHAVE LIKE A REASONABLY PRUDENT PERSON (RPP)

Answer 25

While the reasonably prudent person standard sets a minimum level of care, a Defendant who has knowledge or experience superior to that of an average person is required to exercise that superior skill or knowledge. The Defendant will be measured against the hypothetical reasonably prudent person with same superior skill or knowledge. ## Footnote Ex. Professional race car must drive his personal car like a reasonably prudent person with the added skill and knowledge of a professional race car driver - so if his car goes into a skid he must use everything he knows about controlling a vehicle in a skid.

Answer 26

The reasonably prudent person is considered to have the same physical characteristics as the Defendant if those physical characteristics are **relevant** to the claim. NOTE: Physical characteristics are usually irrelevant unless it is relevant in the problem! All should act like a reasonably prudent person. ## Footnote Example - If the Defendant is blind, and the characteristic is relevant to the claim then the standard of care becomes a reasonably prudent person who cannot see. Example - If the Defendant is 6'8 and height is relevant in the problem, then the standard of care becomes a reasonably prudent person who is 6'8.

Answer 27

A child **under five years old** is usually without the capacity to be negligent (no standard of care) **Age 5-18**: Children are held to the standard of a hypothetical child of like age, experience, and intelligence acting under similar circumstances. This is a subjective test. Pro-defendant standard of care. (So every child is going to have a different standard of care) * **Exception**: Children engaged in potentially dangerous adult activities may be required to confrom to an "adult" standard of care - Reasonably prudent person. ---- ("Adult activity" - Operating a motorized vehicle - car/motorcycle; includes farm equipment - tractor; jet skis; snowmobiles)

Answer 28

A professional is required to possess the knowledge and skill of an **average** **member** (conform to their colleagues) of the profession or occupation in good standing. Empirical standard (research/fact based) **NOTE**: For malpractice claims an expert witness is often used to educate the jury on the professional custom. * For expert witnesses, most courts apply a **national standard of care** - it's assumed the standard of care is uniform. --Geographically the expert witness can be from anywhere, but they have to come from the same specialty. | Custom of the profession sets the standard of care ## Footnote Professionals must provide the same care as an average member of the profession providing similar professional services.

Answer 29

A doctor has a **duty to disclose the risks** of treatment to enable a patient to given an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent on learning of the risk. | Malpractice Claims

Answer 30

Under the traditional rule followed in many states, the duty owed a Plaintiff on the premises for **dangerous conditions** on the land depends on the Plaintiff's status as: (1) Unknown trespasser; (2) Known trespasser; (3) Licensee; or (4) Invitee. **Note**: Possessor is not always the owner. **Note**: If Plaintiff is injured from activities conducted on the land, the special rules for land does not apply. Only the ordinary prudent person standard of care would apply. ## Footnote Ex. Plaintiff being a guest in someone's home and getting burned by hot tea - this is not a dangerous condition on the land, so just the RPP standard of care would apply.

Answer 31

No duty is owed to an **undiscovered** trespasser. ## Footnote Plaintiff came onto the land without the possesor's permission and possesor was unaware the trespasser was on their land - no duty!!

Answer 32

As to **discovered** or **anticipated** trespassers, the land possessor must warn of or make safe any conditions that are: H A C K (1) **H**ighly dangerous (involving risk of death or serious bodily harm); (2) **A**rtificial condition (man-made); (3) **C**oncealed (must be hidden); **AND** (4) **K**nown to the land possessor in advance. Possessor has a duty *only if* all four conditions are present. | Possessor only has a duty for known, man-made death traps! ## Footnote If there is a pattern of trespassing in the past - then there's anticipated trespassing. (i.e. If people frequently cut through your backyard)

Answer 33

A licensee is one who enters land with permission for their own purpose or business, but without financial benefit to possessor. The land possessor has a duty to **warn of** or **make safe** hazardous conditions that are: (1) Concealed; and (2) Known to the land possessor in advance. Land possessor must exercise reasonable care in the conduct of "active operations" on the property. The possessor has no duty to inspect or repair. Typical Licensees: * Social guests * Uninvited indviduals walking up to your front door have implied consent by the custom of the community. Unless there are signs "no trespassing/soliciting" or the gates are locked. | Possessors must protect licensees from all known traps.

Answer 34

Invitees enter onto the land in response to an invitation by the possessor of the land for financial benefit of the possessor (purpose connected w/ the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public). An invitee will lose invitee status if they exceed the scope of the invitation (entering "employees only" room) The possessor owes a duty to invitees regarding hazardous conditions that are: (1) Concealed; and (2) Known by possessor or could have discovered through reasonable inspection * Reasonably inspections take place at reasonable intervals of time and are reasonably thorough. Typical Invitees: * Includes when open to public at large. * Customers of a business * Going to the airport to pick up your friend (you'll be considered an invitee even if you didn't spend any money because airport is open to the public) | Possessor must protect all reasonably knowable traps on the land. ## Footnote Ex. If a store has a reasonably prudent person inspect their property every 3-months, and a hazardous condition comes about between the intervals and possessor was unaware - there will be no liability for it because there was reasonable inspection. Reasonable interval of time will depend on what the facility is; custom of other similar property possessors.

Answer 35

Possessor can satisfy their premises liability duty of care by the following measures: (1) Eliminate the hazardous condition - Repair; - Replace; or - Remove. (2) Warning about the hazardous condition - Warning must be sufficiently complete so that it communicates the nature of the danger to the person who receives the warning, but it must be a form of warning that will keep the danger present in their mind - Like a warning sign - likely the correct answer.

Answer 36

Most courts impose on a landowner the duty to exercise reasonably prudent care under circumstances to protect children from artificial hazards on the land. To establish the doctrine's applicability, the Plaintiff must show: (1) Dangerous condition on the land that the owner is or should be aware of; (2) The owner knows or should know that children might trespass on the land; (3) The condition is likely to cause injury (it is dangerous because of the child's inability to appreciate the risk); (4) The expense of remedying the situation is slight compared w/ the magnitude of risk. | If there's something attractive on your land, you must child proof. ## Footnote Ex. If it's unlikely that a child would trespass onto the land - possessor has no duty to eliminate conditions that is likely to cause injury. And if a child happens to come onto the land - possessor has no liability because they acted reasonably under the said circumstances. Ex. If there's something on the land that would draw the children - suburban neighborhood with a swingset, and you live across the street from an elementary school. Would you anticipate there'll be children trespassing? YES. Then, that means as a reasonable prudent person you must exercise reasonable care that the swingset itself is safe and any other hazards on your property has been eliminated/made safe.

Answer 37

A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Answer 38

Generally there is no duty to protect someone off the premises from natural conditions on the premises however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. * Also, one must carry on activities on the premsies so as to avoid unreasonable risk of harm to others off the premises.

Answer 39

The lessee has a generaly duty to maintain the premises. The lessor must warn of existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, they are liable for unreasoanbly dangerous conditions. If the lessor volunteers to repair and does so negligently, they are liable.

Answer 40

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.

Answer 41

Plaintiff must prove a clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more generaly common law duty of due care if: (1) Plaintiff is within the protected class; (2) Statute was designed to prevent the type of harm suffered by the Plaintiff. | Class of person/class of risk ## Footnote Protected class of persons can be: Children, customers, patients, pedestrians, visitors, occupants of the building, etc. (must be a subset).

Answer 42

(1) Legal - Plaintiff must establish the statute is legally appropriate;and (2) Factual - Plaintiff must show Defendant violated the statutory command.

Answer 43

Violation of some statutes may be excused where compliance would cause more danger than violation **or** where compliance would be impossible. ## Footnote Ex. Dave driving on the road swerves into the other lane to avoid hitting a child who runs into the road. Dave hits Pete who was travelling on the opposite road. Pete brings a negligence per se claim stating the statute reflects drivers may not cross the yellow line. Court will not apply the statute even if Pete meets the two prong standard of care test because here obeying the statute - he would have hit the child. Ex. Dave has a heartattack while driving his vehicle and he runs a red light hitting Pete a pedestrian. Pete wants to use the red light statute as a standard of care. The exception applies - compliance was impossible.

Answer 44

Generally, one does **not** have a legal duty to act. There is no duty to rescue. * If one chooses to act, they must do so as a reasonably purdent person under the set circumstnaces.

Answer 45

A special relationship between the parties (parent-child) may create a duty to act. Similarly, common carriers-guests, innkeepers-guests, shopkeepers-customers and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. * Places of public accomodation have a duty to prevent injury to guests by third persons. ## Footnote Mordern view: Expanded the concept of special relationship to any people who are not strangers. Mention this in the essay, but apply the traditional rule for MC.

Answer 46

One has a duty to assist someone they have negligently **or** innocently placed in peril. | Normally no duty to rescue if one did not cause the peril.

Answer 47

One may assume a duty to act by acting. Once the person undertakes to aid someone, they must do so with reasonable care. * If the person who voluntarily and gratuitously rescues and does so in an unreasonable or negligent manner and causes harm, that person will be liable for his or her error. **Exception**: Many states have enacted Good Samaritan statutes which insulate negligent rescuers from liability. The statute exempts doctors, nurses, etc., from liability for ordinary, but not gross, negligence. * But, on the exam assume there is no Good Samaritan law, unless the call of the question explicitly states the statute applies.

Answer 48

Generally, there is no duty to prevent a third person from injuring another. * An affirmative duty may be imposed, however, if one has the actual ability **and** authority to control a person's actions, and knows **or** should know the person is likely to commit acts that would require exercise of this control.

Answer 49

**Not** duty to rescue, but duty to act reasonably under the circumstances. ## Footnote Ex. Inkeepers-guest relationship - If the hotel is on fire, the hotel has a duty to call 911 or give the guests instruction. The hotel does not have a duty to go into the burning hotel room to rescue the guest. Ex. If a child is drowning in a lake, and you are the cause, but you don't know how to swim - there is no duty for you to risk your life by going into the lake to save the child. But you must seek help - call 911, throw a rope, etc. to act reasonably under the circumstances.

Answer 50

Common carriers and innkeepers are held to a very high degree of care, meaning they are liable for slight negligence. * The Plaintiff must be a passenger or guest.

Answer 51

A guest in an automovile is owed a duty of ordinary care. * In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Answer 52

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title - Bailor loaning their car to the Bailee. Duties owed by Bailee - Bailee's standard of care depends on who benefits from the bailment: (1) Sole benefit of the bailor bailment, there is a low standard of care; (2) Sole benefit of the bailee bailment, there is a high standard of care; (3) Mutual benefit of bailment, there is ordinary standard of care. Duties Owed by Bailor - (1) Sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. (2) Bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware.

Answer 53

A Defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the Defendant's own making.

Answer 54

Defendant creates a **foreseeable risk of physical injury **to the Plaintiff. The Plaintiff usually must satisfy two requirements to prevail: (1) Plaintiff must be within the "zone of danger"; and * Plaintiff will be considered to be within the zone of danger of the Defendant's negligent acts when the Plaintiff is sufficiently close to the Defendant such that they are subject to a high risk of a physical impact. (2) Plaintiff must suffer physical symptoms from the distress. * Most courts require that Plaintiff suffers subsequent physical symptoms from the distress. | In NIED, there is no physical injury but it's a close call - near miss. ## Footnote Plaintiff's fear of almost getting injured.

Answer 55

A bystander outside the "zone of danger" of physical injury who sees the Defendant negligently **injuring a third party** can recover damages for emotional distress if: (1) Plaintiff and the person injured by the Defendant are closely related; **and** * Spouse, parent, minor child (strictly limited) (2) Plaintiff was present at the scene of the injury and personally observed or perceived the event. * Must have seen it in real-time - contemporaneous witness ## Footnote Plaintiff's grief/sadness witnessing their loved ones getting injured.

Answer 56

Plaintiff can recover if **highly foreseeable** that careless performance by Defendant will produce emotional distress. (1) Patient/medical laboratory - Erroneous conclusion that the patient has cancer. (2) Customer/Mortuary - Losing remains/cremating when you chose embalming. Customer is already emotionally fragile and if the mortuary does their job carelessly, it's highly foreseeable this will produce emotional distress. (3) (No recovery) Customer/dry cleaner - Blouse is severly damaged and customer has a meltdown. Even if the reaction is sincere, this is not highly foreseeable.

Answer 57

When the Defendant's conduct falls short of that level required by the applicable standard of care owed to the Plaintiff, the Defendant has breached their duty. Breach can be an affirmative act **or** omission.

Answer 58

When the standard of care is "reasonable prudence," evidence of the custom or usage of others may be used to establish how a reasonable person sohuld have behaved under the circumstances. However, this evidence is not conclusive on the question of whether a certain conduct amounted to negligence. Even if certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

Answer 59

Where the duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is conclusive evidence of breach of duty. This is known as negligence per se. Causation and damages must still be established by the Plaintiff.

Answer 60

In some cases, the very occurence of an event may tend to establish a breach of duty. The res ipsa loquitor doctrine requires the Plaintiff to show that: (1) The accident causing the injury is a type that is normally associated with negligence; **and** (2) The accident would normally be due to negligence of someone in Defendant's position. * This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the Defendant. | Used by Plaintiff without information about Defendant's breach.

Answer 61

Where Res Ipsa Loquitor is established, the Plaintiff has made a prima facie case and no directed verdict may be given for the Defendant. The jury then decides in their collective judgment. * The Plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact. ## Footnote - No directed verdict may be given for the defendant, because when the res ipsa element has been proved, the plaintiff has made a prima facie case for negligence. - The doctrine, however, does NOT switch the burden of proof to the defendant and does NOT create a presumption of negligence. - Furthermore, it does NOT require the defendant to present evidence of due care in rebuttal. - If the jury elects not to infer negligence, it may find for the defendant even if the defendant presents no evidence on that issue.

Answer 62

* Link between **breach** and **harm** * For liability to attach, Plaintiff must show both (1) **Factual** and (2) **Proximate** cause.

Answer 63

* Injury would not have occurred **but for** act or omission * This test applies where several acts (each insufficient to cause the injury) combine to cause the injury * Defendant can refute this by showing that Plaintiff would have still been injured even if the act or omission did not occur

Answer 64

* **Applicable when?** 2 Defendants acting independently each commit a breach combining into single indivisible harm * **Effect?** Defendant liable if breach contributed in significant/substantial way to ultimate injury * If breach would have been able to cause entire harm if it had been only breach, it's a **substantial factor** * Merged cause scenario where **both** breaches found to be **substantial factor** = Defendants held jointly and severally liable

Answer 65

Substantial Factor

Answer 66

* 2 acts, only **ONE** of which causes injury, but unknown which one * Burden of proof shifts to defendants, and each must show that his negligence is NOT the actual cause ## Footnote Quail hunting case (*Summers v. Tice*)

Answer 67

* Proximate cause can be thought of in terms of **fairness** * **Foreseeability Test**: Was outcome foreseeable risk associated with breach?

Answer 68

1. **Passage of time** = things that happen right away are more likely to be foreseeable than things that happen after long passage of time 2. **Geographic distance** = things that happen close to where Defendant was located and where breach happened are more likely to be foreseeable than things that happened greater distance away 3. **Prior occurrence**

Answer 69

1. Medical malpractice 2. Negligence of rescuers 3. Protection or reaction forces to the Defendant's conduct, including efforts to protect person or property 4. Disease or accident substantially caused by the original injury ## Footnote **Normal responses or reactions to situation created by Defendant's negligent acts are almost always foreseeable; Defendant LIABLE**

Answer 70

INCREASED. 1. Negligent acts of third person 2. Crimes and intentional torts of third person 3. Acts of God

Answer 71

Intervening forces that produce unforeseeable results break the causal connection between Defendant's initial negligent act and Plaintiff's ultimate injury, relieving Defendant of liability.

Answer 72

* Once plaintiff has established all other elements of claim, plaintiff receives ALL damages suffered, even if surprisingly great in scope * Take your plaintiff as you find your plaintiff | Not limited to negligence claims

Answer 73

* Defendant shows plaintiff failed to exercise proper care for own safety * Jury will be instructed to assign % of fault --> Plaintiff's recovery reduced based on plaintiff's % of fault * Last clear chance is not used in comparative negligence jdx's * Express assumption of risk is a complete defense. Implied assumption of risk is analyzed as either (1) Limitation on the duty owed to plaintiff or (2) Contributory negligence * Plaintiff's negligence will be taken into account in most states eeven though defendant's conduct was wanton and willful or reckless. But plaintiff's negligence is still no defense to intentional tortious conduct by the defendant. ## Footnote **Example**: P proves $100,000 in damages. Jury finds D 80% at fault and P at 20% at fault. P's damages reduced by 20%. P will recover $80,000.

Answer 74

Majority of states have adopted partial comparative negligence, where if Plaintiff's own negligence contributes to their injury above the threshold level (more than 50% at fault) then Plaintiff's claim is barred. - If more than one Defendant has contributed to the Plaintiff's injury, the Plaintiff's negligence will be compared w/ the total negligence of all the defendants combined.

Answer 75

Plaintiff's own negligence contributes to their injury. Plaintiff's damage award gets reduced by percentage of fault attributable to the Plaintiff. - Pure comparative negligence allow recovery no matter how great Plaintiff's negligence was. * On the MBE, assume that pure comparative negligence applies unless the question states otherwise.

Answer 76

All damages (past, present, prospective), both economic and noneconomic damages. Plaintiff suffering physical injury also may recover damages for any resulting emotional distress

Answer 77

Plaintiff may recover damages for mental suffering once they bring an underlying tort claim from which they suffered an original physical impact or injury, followed by emotional distress. - They can "tack on" damages for mental and emotional suffering to the underlying claim because Defendants are liable not only for the physical consequences from their tortious conduct, but also for virutally all emotional or mental suffering that flows naturally from it. * This includes fear, anxiety, etc.

Answer 78

* Reasonable cost of repair OR if property is totally or nearly destroyed, FMV at tie of accident. * Cannot recover emotional distress damages for negligent harm to property. * Cannot recover for emotional distress if another party negligently injures or kills pet

Answer 79

Not available in negligence cases. But plaintiff may recover punitive damages if defendant's conduct is "wanton and wilful," reckless, or malicious.

Answer 80

1. Interest from data of daamge in a personal injury action 2. Attorneys' fees

Answer 81

Plaintiff has a duty to take reasonable steps to mitigate damages

Answer 82

Damages are not reduced just because the plaintiff received benefits from other sources

Answer 83

* Plaintiff's own negligence contributes to their injury * Standard of care is same as ordinary negligence -- rescuer will not be deemed contributory negligent without taking into account the emergency situation * Contributory negligence is a defese to negligence proved by the defendant's violation of a statute UNLESS statute was designed to protect a class of plaintiffs from their incapacity and lack of judgment

Answer 84

1) NO 2) NO

Answer 85

Completely barred plaintiff's right to recovery at common law. However, almost all jdx's now favor a comparative negligence system.

Answer 86

Last clear chance permits a plaintiff to recover despite their contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is liable for negligence

Answer 87

If plaintiff is in helpless peril, defendant will be liable if they knew or should have known of plantiff's predicament.

Answer 88

In situations whee Plaintiff could have extricated themselves if attentive --> Defendant must actually have known of plaintiff's predicament.

Answer 89

For the last clear chance doctrine to apply, defendant must have been able, but failed, to avoid harming the plaintiff at the time of the accident. If defendant's only negligence occurred earlier, doctrine will not apply

Answer 90

* Contributory negligence of a third party will be imputed to a plaintiff (and bar plaintiff's claim) only when the relationship between the third party and plaintiff is such that a court could fid the plaintiff vicariously liable for the third party's negligence. * Negligence is imputed in employer-employee, partner, joint venturer relationships. * Negligence is NOT imputed between spouses, parent and child , and automobile owner and driver.

Answer 91

Plaintiff may be denied recovery if they assumed the risk of any damage caused by defendant's act. Plaintiff must have: (1) Known of the risk; and (2) Voluntarily proceeded in the face of the risk.

Answer 92

* Knowledge may be implied where the risk is one that an average person would clearly appreciate * Plaintiff may not be said to have assumed risk where there is not available alternative to proceeding in the face of the risk or in situations involving fraud, force, emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk

Answer 93

Risk may be assumed by an express agreement

Answer 94

1) NO 2) YES

Answer 95

Generally, an owner is not strictly liable for injuries caused by domestic animals (including farm animals). Exception - There is strict liability if one has knowledge of the animal's **dangerous propensities**. * Dogs that bite humans are considered to have dangerous propensities because dogs have been domesticated by humans for centuries. First bite - no strict liability, but bites 2 through X, owner is now on notice and there's strict liability. **Note**: * Injury caused by the normally dangerous characteristic of domestic animals does not create strict liability. (Donkeys normally kick w/ their hind legs, so if your donkey kicks someone this doesn't cause strict liability.) ## Footnote Landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.

Answer 96

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Answer 97

Strict liability will generally not be imposed in favor of trespassers. To recover for their injuries from a wild animal (or abnormally dangerous domestic animal) a trespasser must prove the owner's negligence. * If you own a dog that you know has dangerous propensities and a trespasser gets bit by coming onto your land - no strict liability.

Answer 98

An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets).

Answer 99

Courts generally impose two requirements for finding an activity to be abnormally dangerous: (1) The activity must create **foreseeable risk of serious harm even when** reasonable care is exercised by all actors; and (2) The activity is uncommon in the community. ## Footnote Example: (1) Anything involving the use of explosives/blasting (nitroglycerin, fireworks, chemical or biological materials) - there's always strict liability for explosives/blasting even if Defendant has taken upmost care. (2) Transporting/handling highly dangerous chemical/biological materials. (3) Use of nuclear energy or high dose radiation - low dose radiation is common and not considered abnormally dangerous.

Answer 100

Products liability refers to the liability of a supplier of a defective product to someone injured by the product. Victim almost always will have **multiple causes of action**: (1) Negligence (2) Intentional tort (3) UCC claim - Implied warranties of merchantability and fitness for a particular purpose (4) Representation theories (express warranty and misrepresentation/fraud) (5) Strict Liability

Answer 101

To find liability under a strict liability theory, the Plaintiff must show: **(1)** Defendant is a merchant; **(2)** Product is defective; **(3)** Product was not substantially altered since leaving the Defendant's control; **(4)** Plaintiff was making a foreseeable use of the product at the time of the injury. ## Footnote (1) Defendant is a merchant; (2) Product is defective; (3) Product was the actual and proximate cause of P's injuries; (4) Plaintiff suffered damages to person or property.

Answer 102

Any commercial supplier can be held strictly liabilily. But, it does not extend to casual sellers and service providers. (1) Casual sellers are not merchants * Casual sellers typically sell used goods - cannot be held strictly liable because they're not a merchant. (2) Service provider are not merchants * Ex. Chair breaks in the doctor's office - doctor is not strictly liable, but Plaintiff may sue for negligence. (3) Commercial lessors IS merchants - those who rent rather than sell products to be held strictly liable. * Car rental companies will be held strictly liable if the car you rented breaks down and an accident occurs. However, Plaintiff will need to prove all the product liability elements. (4) Everyone in distribution chain is merchant * Can sue the retailer, wholesaler, manufacturer. Users, consumers, and bystanders can sue. (privity of contract is not required to bring a strict liability claim for a defective product)

Answer 103

(1) Manufacturing defect - Product emerges from manufacturing is different from others and more dangerous than consumers would expect. (2) Design defect - Risks associated w/ product's design outweigh the utility of the design. * Feasible Alternative Approach - Plaintiff must show an alternative design would have been safer, practical, and economically feasible. (typically w/ an expert witness) (3) Information Defects - Hidden risks without adequeate warnings and instructions. * Warning must be prominent (cannot be hidden) * Comprehensible (Must be in multiple languages if seller is aware the product is being marketed to a certain group) * Provide information about mitigating the risk

Answer 104

A product's noncompliance w/ government safety standards establishes that it is defective, while compliance w/ safety standarad is evidence, but not conclusive, that the product is not defective.

Answer 105

Plaintiff must show that the product has not been significantly altered since it left the Defendant's control. There is a presumption that product moved in ordinary channels of distribution has no alteration.

Answer 106

Plaintiff must have been making a foreseeable use of the product at the time of the injury. A Defendant will not be held liable for dangers not foreseeable at the time of marketing. * Foreseeable use does NOT mean an "intended" or an "appropriate" use. ## Footnote Example: Plaintiff using a chair as a stepping stool - this is foreseeable!

Answer 107

Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Answer 108

Disclaimers are irrelevant in strict liability cases if personal injury or property damages occur.

Answer 109

Negligence in a products case is proved the same as in a standard negligence case. Plaintiff may invoke **res ipsa loquitur** if the defect is something that would not usually occur without the manufacturer's negligence. * Intermediaries - It's difficult to hold intermediaries (retailers and wholesalers) liable for negligence because they can usually satisfy their duty through a cursory inspection. Intermediary's negligent failure to discover a defect does **not** supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence.

Answer 110

(1) Traditional defenses - is knowingly encountering dangerous situation bars recovery. (2) Contributory negligence - No defense if the Plaintiff has failed to realize the danger or guard agaisnt it. It is a defense if the Plaintiff knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal/abnormally dangerous activity/defective product. (3) **Comparative responsibility** - The jury will assign percentages based on the respective responsibilities of the two litigants and then Plaintiff's recovery will be reduced accordingly. (apply this on the exam, unless stated otherwise)

Answer 111

A nusiance is an invasion of property rights by tortious conduct that must be intentional or negligent. There are two types of nusiance: private and public.

Answer 112

Private nuisance is a **substantial**, unreasonable interference w/ another private individual's **use or enjoyment **of property that the other individual actually possesses or has the right of immediate possession. * Minor interference is not actionable under a nuisance claim.

Answer 113

Two neighbors who just should not be located next to each other - often they're two businesses. This is a nuisance case. ## Footnote Plaintiff operating a facility that treated people who suffered from nervous breakdowns. The defendant who operated next door to the plaintiff specialized in heavy metal music.

Answer 114

Defendant is acting out of spite to annoy the Plaintiff - deliberately blasting loud noises; shining bright lights into the Plaintiff's home.

Answer 115

Defendant hosting parties throughout the year.

Answer 116

Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the Plaintiff's hypersensitivity or specialized use of their own property.

Answer 117

To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of the Defendant's conduct. * Courts take into account that every person is entitled to use their own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courtses of conduct open to the Defendant. | Must be intolerable. Big time interference!! ## Footnote Example: Neighbor mowing his lawn at 6am in the morning and disturbing your sleep - not an unreasonable interference.

Answer 118

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community. * Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large. ## Footnote Example: Building for criminal activities such as prostitution.

Answer 119

The Plaintiff will be awarded damages. (1) Injunctive Relief; or (2) Abatement by Self-Help

Answer 120

If the legal remedy of damages is unavailable or inadequate, injunctive relief will be awarded. In this case, the court will consider the relative hardships. * However, hardships will not be balanced if the Defendant's conduct was willful.

Answer 121

In the case of a private nuisance, self-help abatement is available after notice to the Defendant and their refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.

Answer 122

Legislative authority for "nuisance activity" (i.e. zoning ordinance) is not an absolute defense but is persuasive.

Answer 123

No one actor is liable for all damages caused by concurrence of their acts and others.

Answer 124

Contributory negligence generally is no defense to nuisane unless the Plaintiff's case rests on a negligence theory.

Answer 125

One may "come to a nuisance" (purchasing lang next to an already existing nuisance) and, thereafter, puruse an action. It is generally not a bar to the Plaintiff's action unless the Plaintiff "came to the nusiance" for the sole purpose of bringing a harassing lawsuit.

Answer 126

Vicarious liability is liability that is derivatively imposed (there's usually 2 tortfeasors). This means that one person (the active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act. (1) Active tortfeasor - Party whose affirmative conduct caused the harm. (2) Passive tortfeasor - Party held vicariously liable based on relationship to active tortfeasor.

Answer 127

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship. This concept is also know as the doctrine of respondeat superior.

Answer 128

An employee making a **minor** deviation from their employer's business for their own purposes is still acting within the scope of employment. If the deviation in time or geographic area is substantial, the employer is not liable. * Minor departure - Employer is still liable. * Major departure - Employer is not liable.

Answer 129

Intentional tortious conduct by employees is not within the scope of employment. **Exceptions**: (1) Employee is furthering the business of the employer; (2) Force is authorized in the employment; * Misuse of that force is within the scope of the employment (i.e. bouncer of a club) (3) Friction is generated by the employment * Bill collector

Answer 130

Employers may be liable for their own negligence by negigently selecting or supervising their employees.

Answer 131

Hiring party (the principal) is generally not liable for torts commited by independent contractor. **Exception** - A business owner can be held vicariously liable if the independent contractor working on the business premises and hurts a customer.

Answer 132

The employer may be liable for their own negligence in selecting or supervising the independent contractor. ## Footnote Example - Hospitable may be liable for contracting w/ an unqualified and incompetenet health care provider who negligently treats the hospital's patient.

Answer 133

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the **scope and course** of the affairs of the partnership or joint venture.

Answer 134

General rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile. * In some jurisdictions, courts have developed exceptions to this rule to hold an automobile owner liable under specific circumstances. **Family Car Doctrine** - In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission.

Answer 135

Many states now impose liability on the owner for damages caused by anyone driving with the owner's consent. * However, under the federal statute, **rental car companies** are **not** vicariously liable for the negligent accidents of their customers even if they do business in a "permissive use" state.

Answer 136

An owner may be liable for their own negligence in entrusting the car to the driver. Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could ahve prevented the negligent driving, and hence were negligent in not doing so.

Answer 137

The car owner will be liable if the driver is acting as the owner's agent, for instance using the car to perform an errand for the owner.

Answer 138

Under the general rule, the bailor is not vicariously liable for the toritous conduct of their bailee. * Bailor may be liable for their own negligence in entrusting the bailed object.

Answer 139

At common law, a parent is not vicariously liable for the tortious conduct of their child. However, most states - by statute - make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount. (i.e $10k).

Answer 140

Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents.

Answer 141

Parent may be held liable for their own negligence in allowing the child to do something i,e, use a dangerous object without proper instruction. * If the parent is apprised of the child's conduct on past occasions showing a tendency to injure another's person or property, they may be liable for not using due care in exercising control to mitigate such conduct - i.e. by allowing the child to play w/ other chuldren that they have a history of attacking. ## Footnote Even if the Defendant is not vicariously liable, the Plaintiff may prevail if the Defendant personally was negligent in supervising the person causing the injury or in entrusting a dangerous object to someone not equipped to handle it.

Answer 142

- Under **Common Law,** no liability was imposed on vendors of alcohol for injuries resulting from the partron's intoxication, whether the injuries were sustainted by the patron or by a third person as a result of the patron's conduct. - Under **Modern Law**, in order to avoid this common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated patron. Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles rather than vicarious liability. ## Footnote Foreseeable risk of serving a minor or obviously intoxicated adult.

Answer 143

When two or more Defendants act in concert and injure the Plaintiff, each Defendant is jointly and serverally liable for the entire injury. Under joint and several liability the Plaintiff can recover full damages from any Defendant Plaintiff chooses. But, if the injury is divisible, each Defendant is liable only for the identifiable portion.

Answer 144

* Recovery of full payment is a "**satisfaction**" Only one satisfaction is allowed. Until there is satisfaction, however, one may proceed agaisnt all jointly liable parties. * In most states, a **release** of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.

Answer 145

Allows a Defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess - seeks compensation from co-defendant(s).

Answer 146

In a multiple defendant scenario, a jury will assign every Defendant a percentage that reflects the **relative faul**t of the various Defendants. ## Footnote Note - Plaintiff can receive all the money s/he chooses from any Defendant, so the percentages do not matter to the Plaintiff, but the percentages control when Defendant A goes after B and C for contribution. But Defendant A bears the risk of insolvency of the co-defendants - If A goes after B for their share of the injury and B is insolvent, A is just out of luck.

Answer 147

In a minority of states, apportionment is the equal shares regardless of degrees of fault.

Answer 148

The contribution Defendant must be originally liable to the Plaintiff. If the contribution Defendant has a defense that would bar liability, they are not liable for contribution.

Answer 149

Contribution is not allowed among intentional tortfeasors.

Answer 150

Indeminification involves shifting the entire loss between or among tortfeasors. The Defendant who paid was much less responsible tahn the nonpaying Defendant. Indemnity is available in the following circumstances: (1) Vicarious liability situations where passive tort-feasor was held liable (full indemnification from the active tort-feasor); (2) Under strict products liability where non-manufacturer was held liable (full indemnification from the manufacturer) ## Footnote Full reimbursement to out-of-pocket Defendant.

Answer 151

Either spouse may bring an action for indirect interference w/ consortium and services caused by the Defendant's intentional or negligent tortious conduct against the other spouse. Three types of injuries loss of consortium is designed to compensate: (1) Loss of household services; (2) Loss of society/companionship; (3) Loss of sex. ## Footnote Derivative of the injured party's claim so any defenses raised againt the injured spouse could also be raised to the consortium spouse.

Answer 152

A parent may maintain an action for loss of a child's services and consortium as a result of the Defendant's tortious conduct, whether intentional or negligent. * A child, however, has no action in most states against one who tortiously injures their parents.

Answer 153

Loss of consortium actions are derivative. So, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for intereference w/ the family relationship.

Answer 154

Survival acts allow one's cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. * However, torts invading intangible personal interests (defamation, invasion of right of privacy, etc) expire upon the victim's death.

Answer 155

Wrongful death acts grant recovery for pecuniary injury resulting to the spounse and next of kin. A decedent's creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had they lived. * The decedent's contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potentila beneficiary's contributory negligence reduces theri share of the recovery in comparative negligence states.

Answer 156

Traditionally, one member of a family unit could not sue another in tort for personal injury. - Today, most states have abolished spousal immunity. - Slight majority have abolished parent-child immunity. Those that retain parent-child immunity do not apply it in: (1) cases alleging intentional tortious conduct; or (2) Automobile accident cases to the extent of insurance coverage.

Answer 157

Federal, state, and municipal tort immunity has been eliminated. Where it survives, the immunity attaches to governmental, not proprietary, functions.

Answer 158

Under the Federal Tort Claims Act, the US has waived immunity for tortious acts. However, immunity will still attached for: (1) Assault; (2) Battery; (3) False imprisonment; (4) False arrest; (5) Malicious prosecution; (6) Abuse of process; (7) Libel and slander; (8) Misrepresentation and deceit; and (9) Interference w/ contract rights. * Note - Immunity is also not waived for acts that are characterized as "discretionary"; acts termed "ministerial are not immune from liability.

Answer 159

Most states have substantially waived theri immunity to the same extent as the federal government; hence, immunity is retained for discretionary acts and for legislative and judicial decisionmaking.

Answer 160

Half of the states have abolished municipal immunity to the same extent as for the state government. Where municipal immunity has been aboslished, the "public duty" rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen. * So a city is not liable to one whose house burns if its fire department negligently fails to respond to an alarm, becasue the provision of the fire protection services is a public duty. * Where municipal immunity still exists, contract "governmental" functions and "proprietary" functions. Courts limit application of soverign immunity by not granting it for proprietary functions.

Answer 161

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.

Answer 162

The majority of jurisdictions have eliminated charitable immunity.

Answer 163

(1) (A) **A defamatory statement** = Adversely affects reputation; factual representation that reflects adversely on character. (B) **Specifically identifies Plaintiff** = By name not required, any identifying information is sufficient. Small group = everyone has claim, Large group = no one has claim. Plaintiff must be alive when statement made. (2) **Published to a 3P** = 1 other person beyond Plaintiff. Publication need not be intentional, mere negligent publishing suffices! (3) **Falsity of the defamatory language** = Excludes negative but truthful statements, but subject to limitation by privacy torts. (4) **Fault on the part of the Defendant** = degree of awareness Defendant had concerning the falsity of the statement; however, statement with good faith reasonable belief of truth = Not liable for defamation! Fault required depends on Plaintff (*see flashcard*) (5) **Damage to Plaintiff's reputation** (*See flashcard*)

Answer 164

NO! Opinion is actionable only if it implies specific facts. ## Footnote "You'd be crazy to let Attorney X handle your escrow money" = Actionable! Implies he stole money from me.

Answer 165

NO! ## Footnote "X is a son of a B****" = Not actionable!

Answer 166

* **Private Person**: *Negligence* * **Public Figure**: *Malice = Knowledge or reckless disregard* (i.e., defendant deliberately lied or ignored very strong evidence the statement was false and went ahead and said it anyway). Who? **Anyone in the public 👁️ or involved in public concern.** (Note, level changes depending on what they're publicly known for - so if someone arrested for X and you make false statement regarding X, Malice standard; but if you make false statement regarding something not known to public, then negligence standard)

Answer 167

1. **Libel** = Defamation embodied in permanent form 📖💿 Damages are presumed! 2. **Slander Per Se** = Words 🗣️ so clearly defamatory that ordinary person would understand injury; Damages presumed! **Slander per se categories**: (1) Business/profession 👩🏻‍💼 (2) Serious crime ⛓️‍💥 (3) Serious sexual misconduct (4) Loathsome disease 🦠 (Leprosy; Venereal like STD's) 3. **Plaintiff must PROVE economic harm for slander other than Slander Per Se** = Got fired, didn't get rehired, lost a contract, revenues went down, etc.

Answer 168

1. **Consent** ☑️ 2. **Absolute Privilege**: (A) Between spouses 💍 (B) Officers of gov in connection w/ official work 👩🏼‍⚖️⚖️ (Lawyer arguing case; Senator on floor) 3. **Qualified Privilege**: Available on case-by-case privilege when public interest in encouraging candor. Only applies to statements made in (1) good faith and (2) relevant scope (A) References / Recommendations 📝 (B) Common interest privilege: Qualified privilege for statements made to colleagues within same organization

Answer 169

* Defendant uses Plaintiff's name/image for commercial purpose 🌠 (Ex) Athlete picture on cereal box * Newsworthiness exception * NOT limited to celebrities * **Appropriation**: EMOTIONAL damages 😢 * **Right of publicity**: ECONOMIC damages 💸

Answer 170

* Invasion of Plaintiff's seclusion in way that would be highly offensive to reasonable person 🏡 (Ex) Eavesdropping; Wiretapping; Peeping Tom; Listening at keyhole * Must be at a place where you have a reasonable expectation of privacy, i.e., no REP in public!

Answer 171

* Dissemination of material falsehoold about Plaintiff that would be highly offensive to reasonable person 💬 * Most states require that Defendant KNEW the statement was false or made statement with reckless disregard of its falsity i.e., Malice * (Ex) D runs around town and tells 100 people P is embezzling millions and D knows he's not doing that ! * Defamation = Economic damages * False light = Emotional damages ## Footnote **D says X is Catholic, however, X is Jewish = False light 💡 but NOT Defamation!**

Answer 172

* Widespread dissemination of confidential info about Plaintiff **not of legitimate concern** to public and highly offensive to reasonable person * (Ex) Doc sent your medical records to everyone at law firm * Newsworthiness exception 📰 * Disclosure must be of *truly confidential fact* * (Ex) P is gay but not out at work; at a parade he is holding a "Gay and proud" sign. D coworker sees him at parade and tells everyone at work. P will lose disclosure case!

Answer 173

(1) **Consent** (2) **Absolute/Qualified privilege** available for - **False Light** and - **Disclosure Claims**

Torts Flashcards

(198 cards)