TORTS Flashcards

Question

DEFENSE OF REAL PROPERTY IRNN

Answer 1

I R N N Intruding, Request, Not Deadly, Necessary 1. Plaintiff is intruding on defendant’s real property 2. Request that plaintiff-intruder leave has been made and failed, or would be useless 3. Force is not deadly AND 4. Force is employed only to the extent necessary to repel intrusion (necessity and proportionality)

Answer 2

PSCN Permits, Subjective Consent, Not Substantially Different 1. Plaintiff permits intentional, otherwise tortious conduct to occur; 2. Plaintiff’s subjective intends consent AND 3. Defendant’s conduct is not substantially different from what plaintiff intended

Answer 3

BIN Believe, Immediate, Necessary 1. Defendant reasonably believes the conduct is necessary to protect the life or health of the plaintiff 2. Immediate action necessary AND 3. Defendant has no reason to believe plaintiff would NOT have consented if asked

Answer 4

KRPH Knows, Risk, Probability, Harm 1. Defendant knows OR has reason to know 2. That defendant’s conduct creates an unreasonable risk of harm AND 3. That there is a high degree of probability that harm will result AND 4. Harm results

Answer 5

BDIP Breach, Duty, Injury, Proximate Cause 1. Duty 2. Breach 3. Proximate cause AND 4. Injury

Answer 6

Liability imposed when: B < P X L B = Burden P = Probability L = Loss

Answer 7

FRIEND Failed, Reasonable Investigation, Expected Not to Discover 1. Reasonable investigation of the property would reveal the dangerous condition 2. Property owner would not reasonably expect the invitee to discover the dangerous condition AND 3. Property owner failed to exercise reasonable care in making the condition safe or warning the invitee of the danger

Answer 8

FERKN Failed, Exists, Reason to Know, Not [Licensee Not Know] 1. An unreasonably dangerous condition exists on the property 2. The property owner knows or has reason to know of the dangerous condition 3. The licensee does not know of the dangerous condition AND 4. The property owner failed to exercise reasonable care in making the condition safe or warning the licensee of the danger

Answer 9

No landowner liability to trespassers

Answer 10

FRED R or D Failed, Reason, Exists, Discover, Repeated or Death 1. An unreasonably dangerous condition exists 2. The property owner knows or has reason to know of the dangerous condition 3. EITHER The property owner knows or has reason to know of repeated intrusions onto the property OR The dangerous condition poses a death risk 4. A reasonable trespasser would not discover the condition AND 5. The property owner failed to exercise reasonable care in making the condition safe or warning the trespasser of the danger

Answer 11

FRED D or D Failed, Reason, Exists, Discover, Discover or Death 1. An unreasonably dangerous condition exists 2. The property owner knows or has reason to know of the dangerous condition 3. EITHER The property owner discovers the trespasser on the property before the accident occurs OR The dangerous condition poses a death risk 4. A reasonable trespasser would not discover the condition AND 5. The property owner failed to exercise reasonable care in making the condition safe or warning the trespasser of the danger

Answer 12

FECK Failed, Exists, Concealed, Knows 1. An unreasonable dangerous condition exists on the property 2. The lessor-defendant knows of the condition 3. The condition is concealed, i.e. The plaintiff does not know of the condition AND A reasonable person in the plaintiff’s circumstances would not discover the condition 4. AND The lessor-defendant failed to exercise reasonable care in making the condition safe or warning the plaintiff of the danger

Answer 13

Liability could attach to a defendant whose negligence created an opportunity for the later intentional or criminal actor when the defendant knew or should have known that The likelihood that the opportunity would be created AND That a third person would avail of the opportunity

Answer 14

HICH Hazard, Interest, Class, Harm Legislation can supersede “reasonable person” test when legislation endeavored: 1. To protect this class of plaintiff 2. To protect the interest that plaintiff alleges was invaded 3. To protect the interest from the hazard the plaintiff alleges caused harm AND 4. To protect the interest from the harm the plaintiff alleges was sustained

Answer 15

CAP SAID Civil Action, Preserve, Suffers, Absence Impairs, Destroyed 1. Plaintiff has a potential civil action against defendant; 2. Defendant has a legal or contractual duty to preserve evidence relative to the potential civil action; 3. Defendant with fault [negligence or intent] causes the evidence to be destroyed or otherwise inaccessible; 4. Absence of the evidence significantly impairs plaintiff’s ability to prove the potential civil action 5. AND Plaintiff suffers damages from inability to prove the potential civil action

Answer 16

1. There is a risk of negligence or recklessness 2. Plaintiff has expressly agreed to assume the risk 3. AND The express agreement is not contrary to public policy

Answer 17

COINDiR Consents Otherwise, Injury, Not Divulge, Relationship 1. Doctor-patient relationship exists [duty]; 2. Doctor-defendant does not reasonably divulge to patient-plaintiff sufficient information for a patient to give informed consent to treatment [breach]; 3. Because of doctor’s omission, patient consents to treatment [proximate cause] To which patient otherwise would not have consented AND To which a reasonable person otherwise would not have consented 4. AND Because of doctor’s omission, patient suffers injury that patient otherwise would not have suffered [proximate cause and injury]

Answer 18

BARN Benefits, Alternatives, Risks, Nature Nature of the procedure Risks of the procedure Alternatives to the procedure Benefits to the procedure

Answer 19

REAP Risk, Expressly Agreed, Public There is a risk of negligence or recklessness Plaintiff has expressly agreed to assume the risk AND The express agreement is not contrary to public policy

Answer 20

RUSAK V Risk, Unreasonable, Specific, Assented, Knowingly, Voluntarily There is a Risk of negligence or recklessness The risk is Unreasonable, AND Specific, AND The plaintiff Assented to the risk Knowingly, AND Voluntarily

Answer 21

Pure Comparative Fault - plaintiff’s recovery is reduced in proportion to plaintiff’s fault Modified Comparative Fault - plaintiff cannot recover if more than 50% at fault, otherwise it is proportional to fault; some variation exists among jurisdictions, some allow recovery past 50% fault Modified comparative fault is considered by most to be the happy medium between a system that forces potential defendants to be more cautious (1. simple negligence, then 2. pure C/F) and a system that forces potential plaintiffs to be more cautious (1. contributory negligence, then 2. gross negligence defenses)

Answer 22

Types of Relationships that give rise to imputation Employment (Respondeat Superior) Joint Enterprise (Business Partnership for instance) and Consequential Damages - used to broaden the possible negligence of the defendant(s) by increasing culpable parties or the plaintiff’s contributory negligence Types of Relationships that usually do not give rise to imputation Spouse-Spouse Parent-Child (except when local statutes say otherwise, such as with a child’s debts) Personal Property Bailee-Bailor Vehicle Driver-Passengers

Answer 23

EEPRCRNoDNRUBOF Enters and Encounters, Place Reason, Condition Reason, Not Discover, Not Realize, Utility Burden Outweighed, Fails Child trespasser enters on defendant’s real property and encounters a highly dangerous and artificial condition As to the Place, the landowner knows or has reason to know that children are likely to trespass there Landowner knows / has reason to know of the unreasonable deadly risk with which children are likely to meddle The children do not discover the risk because of their youth, & do not realize the risk of entering into the dangerous area The utility of the condition and the burden of eliminating it are outweighed by the high risk to children AND The landowner fails to exercise reasonable care to make safe or warn

Answer 24

NC ILLA LUMP Not Common, Inappropriate Location, Limited Ability, Low Utility, Magnitude, Probability High probability of loss High magnitude of loss if it materializes Limited ability of defendant to eliminate risk by exercising care Abnormal nature (not common usage) of the activity Inappropriateness of activity to the location Low social utility of the activity

Answer 25

SBDCH Seller, Business, Defective, Caused, Harm Defendant is a seller of the product Defendant is in the business of selling the product Product is defective Defect proximately caused the harm alleged AND The harm was to person or property

Answer 26

FANS Foreseeable, Alternative, Not Safe Foreseeable Risk - manufacturer knew or should have known Reasonable Alternative Design - risk vs. utility balancing (or for Warning Defect, “Reasonable Warning Could Have Helped”) AND Not Reasonably Safe (tests vary jurisdictionally) - self-referential, Wade factors, or consumer expectations test

Answer 27

PISTCURN Protect, Imminent, Serious, Trespass or Conversion, Upon Reasonable Necessity The primary tort claim is trespass (to real or personal property) or conversion Defendant acts intentionally to protect person or property from a threat of harm not caused by plaintiff Threat of harm is Imminent AND Serious AND Def. acts upon reasonable necessity

Answer 28

SPACS CLUNG Symbolic - a minimum might be set by statute Punitive - awarded to punish Actual - provable losses Compensatory - make a plaintiff whole Special - “invoiceable” Consequential - 2ndary, emot. except IIED Liquidated - “pecuniary,” economic Unliquidated - no calc. monetary equivalent Nominal - aka symbolic General - i.e. money for a lost limb

Answer 29

ARMOR Authorized, Reckless, Management, Or Ratified The employer authorized the wrongful act and the manner of its conduct The employer was reckless in employing an unfit employee The employee was working in a management capacity; OR The employer or employer’s managers ratified the wrongful act after it occurred

Answer 30

EAOR IAOR C/N C/F Necessity Also public policy (all torts)

Answer 31

Common Carrier Cmt. i defense and Cmt. j defense (good whiskey, good tobacco, etc.) Majority Approach includes: AOR C/N C/F Also public policy (all torts)

Answer 32

Consent Arrest Privilege Merchant’s Privilege State of the Art Self-Defense Defense of Property Necessity Justification (aka Privilege) Excuse Emergency (such as in a MedMal case) Privilege (such as MedMal case, Nishi v. Hartwell) Also public policy (all torts)

Answer 33

FPW Felony, Peace, Warrant Reasonably suspected that the detainee committed a felony Witnessed a breach of peace by the detainee OR Acted upon a warrant issued upon probable cause

Answer 34

BLT & DRAID Believe, Taken, Leave & Detention Reasonable, Area, Investigation, Duration The actor reasonably believes that detained has taken goods from actor’s premises OR attempting to leave prem. w/o paying for goods or services AND The detention is reasonable with respect to the following The investigative purpose of the detention (such as summoning police & recovery of property) Area or physical scope of the detention (& force used to effect detention) AND The duration of the detention

Answer 35

PHIAN Physical Harm, Immediate, Act, Necessary Defendant is protecting against a threat of physical harm The threat is immediate The harm would result from the intentional or negligent act of the other AND Defendant employs force only to the extent necessary to avert the harm (necessity and proportionality) ...W/ DEADLY FORCE added elements: Defendant knew OR (reasonably) should have known that safe escape (retreat) was not possible OR Defendant is in own home that is not also the attacker’s home

Answer 36

The act of a 3d party in committing an int. tort or crime is a superseding cause of harm to another resulting therefrom, unless the actor, at the time of his negligent conduct, realized or should have realized (LA, Likelihood, Avail): The likelihood that such a situation might be created AND That a third party might avail himself of the opportunity to commit such a tort

Answer 37

subjective consent not necessary elements: Defendant’s conduct justified under prevailing social norms AND Defendant has no reason to believe plaintiff would NOT have consented if asked to

Answer 38

NEED Negligence, Eliminated by Evidence, Duty Plaintiff may invoke RIL when these elements are satisfied: The event does not ordinarily occur absent negligence Other possible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence AND The indicated negligence is within the scope of defendant’s duty to plaintiff

Answer 39

Negligence Per Se diminished breach + proximate cause + injury = liable Res Ipsa Loquitur diminished evidence + injury = liable Strict Liability for Abnormally Dangerous Activities diminished breach + proximate cause + injury = liable

Answer 40

2d Statement Causation: both a question of law and fact Court decides if but-for causation fails; if not, to jury As a Matter of Law Proximity and Foreseeability When ruled on as a matter of law, “reasonable jurors could not differ on the question of fact Proximate = “closest in relationship; immediate” Intervening cause may become a superseding cause that relieves earlier-in-time liability; it would have to be “new and unexpected” and “not foreseeable” to be considered superseding As a Matter of Fact Jury: scientific v. legal/substantial causation? Substantial Causation - function of proximity between defendant’s act and plaintiff’s injury

Answer 41

FLY Factors, Lapse, Yielded Is it legal causation? Factors considered: Other possible Factors and the extent to which they were involved as causal of plaintiff’s injury Whether the defendant’s action Yielded forces in active and continuous operation up to the time of injury (absent a position of apparent safety) Lapse of time Other factors that ought to be considered: lapse of space / physical distance

Answer 42

Requires proof of defendant’s malice (ill will or recklessness) Ill will = common law malice Historically, the only way to achieve punitive damages Recklessness = legal malice Many jurisdictions use this as the threshold for awarding punitive damages

Answer 43

Duty: question of law Circumscribed by Fairness and Public Policy Breach: question of FACT Proximate Cause But-for / scientific causation: Question of Fact Substantiality: Question of Fact Foreseeability: Question of Law Injury: Question of Fact or Law

Answer 44

Majority Rules: Denies survival claims for instant death Permits pre-impact fear damages for survival claims Permits punitive damages against a living defendant Minority Rules: Minority rule allows all survival cases, even instant death, and allows general recovery for the life itself Does not allow punitive damages in survival suits

Answer 45

Scientific Causation = Factual Causation Substantial Causation = Legal Causation Legal Causation = foreseeability! Attenuation = lessened, muffled by passing through a limiting medium

Answer 46

Disallows recovery for emergency responders injured in the line of duty by an actor’s negligence Separate And Apart - a rule in some jurisdictions at one time that held that the Firefighter Rule did not apply (in other words, recovery was allowed) when the injury sustained on the job was due to an actor’s negligence that was not related to the emergency that drew the emergency responder to the scene

Answer 47

BIZ Bystander, Impact, Zone Bystander Rule - (MINORITY) recovery permitted according to the Dillon v. Legg (Cal. 1968) rule, later tightened in Thing Impact Rule - (OVERWHELMING MAJORITY) even slight physical injury can meet the requirement of physical injury that will allow for consequential emotional damages Zone of Danger Rule - (MAJORITY) if plaintiff was in the “zone of danger,” aka could have been injured, but was left unhurt, recovery permitted

Answer 48

PARSED Present and Aware, Related, Severe Emotional Distress The plaintiff is closely related to an injured victim (usually immediate family) The plaintiff is present at the time of the injury-producing event and is then aware that the injury is occurring AND The plaintiff as a result suffers severe emotional distress, not abnormal under the circumstances, but as one might expect, beyond that of the disinterested witness

Answer 49

Creates a separate tort claim for the rescuer One injured while rescuing another from a danger created by defendant’s negligence can recover from the defendant Rescue doctrine eliminates defendant’s otherwise potential “no duty” and “no legal causation” defenses against a rescuer’s claim Pre-comparative fault, rescue doctrine also eliminated affirmative defenses of AOR and C/N

Answer 50

I FAUL F Interference, Fault, Avoid, Utility, Locality, Fault Substantial interference by defendant from its land with plaintiff’s use and enjoyment of its land according to the experience of an ordinary member of the community AND One of the following: Fault, meaning intent to act and knowledge with substantial certainty in the interfering result, and interference that is unreasonable, meaning: Gravity of harm outweighs utility of the defendant’s conduct Defendant can avoid harm in whole or part w/o undue hardship OR The plaintiff’s use and enjoyment is well-suited to the character of the locality, while defendant’s is not OR Fault, meaning defendant’s double-duty intent, recklessness, negligence, or abnormally dangerous activity

Answer 51

PUS Public, Unreasonable, Statute Defendant interfered with a right common to the public as a class, not merely to one individual or small group The interference is unreasonable AND The plaintiff’s cause of action is authorized by statute

Answer 52

FERP Fault, Entry or Remaining, Physical [Harm or Fault] Fault, meaning intent (to enter onto the land), recklessness, negligence, or strict liability (abnormally dangerous activity); Entry or remaining on land, or causing another person or object to effect entry to remaining on land, without privilege AND One of the following Physical harm OR Fault (supra) that is intent-based

Answer 53

FCDH Fault, Contact, Dispossession, Harm [or Dispossession]) Fault, meaning intent (to contact or dispossess); Physical contact with chattel, or dispossession of it; AND Physical harm, or dispossession

Answer 54

FCDH Fault, Contact, Dispossession, Harm [or Dispossession]) Fault, meaning intent (to contact or dispossess); Physical contact with chattel, or dispossession of it; AND Physical harm, or dispossession

Answer 55

FDV Fault, Dominion, Deprivation Fault, meaning intent (to exercise dominion); Exercise of dominion over the chattel of another; AND Deprivation to the plaintiff of the full value of the chattel (“constructive dispossession”)

Answer 56

FDV Fault, Dominion, Deprivation Fault, meaning intent (to exercise dominion); Exercise of dominion over the chattel of another; AND Deprivation to the plaintiff of the full value of the chattel (“constructive dispossession”)

Answer 57

PIFF HD Publication, Identification, Fault, Falsity, Harm, Defamation) Publication (with fault) Identification (with fault) (of and concerning the plaintiff) Expression capable of defamatory meaning (CDM) Fault as to falsity AND Harm Falsity*

Answer 58

Triggering the First Amendment Special Rules occurs when... Public figure or public official status of plaintiff, such as... An all-purpose public figure, who is a person pervasively involved in matters of public interest A limited-purpose public figure, who is a person thrust to the forefront of an issue of public interest, and may include an involuntary public figure A public official, whose official status is relevant to the expression OR Public nature of the matter, or concern, of the expression, determined by the factors... Content, such as the subject matter of a lawsuit Form, such as a telephone conversation or a newspaper story Context, such as overarching public controversy

Answer 59

When plaintiff is a public figure or public official, the First Amendment requires… Expression “of and concerning the plaintiff” Actual malice as to falsity for any damages Actual malice as to falsity proved by clear and convincing evidence Plaintiff’s burden to prove falsity of fact Recovery only for actual damages proved, and no presumed damages AND On appeal, independent review of the factual record to ensure that actual malice as to falsity is supported by substantial evidence

Answer 60

where plaintiff is not a public figure or official, but the subject matter is one of public concern. Here, the First Amendment requires… At least negligence as to falsity for any damages Actual malice as to falsity for presumed damages Actual malice as to falsity for punitive damages AND Proof of actual malice, when required, by clear and convincing evidence

Answer 61

BCLV Broader, Context, Language, Verifiable The specific language used Whether the statement is verifiable The general context of the statement The broader context in which the statement appeared

Answer 62

Libel Per Se Historic Common Law - all libel was “per se” Modern Common Law - libel is “per se” when the expression is automatically defamatory, defamatory meaning on its face, without extrinsic evidence/context Slander Per Se Slander Per Se exists when the expression asserts that (GUID, Guilty, Unchaste, Incompetent, Disease): Plaintiff is guilty of a serious crime Plaintiff has a “loathsome disease” Plaintiff is incompetent or dishonest in plaintiff’s business, trade, or profession OR Plaintiff is unchaste

Answer 63

Absolute Privilege Defense Scenarios Judicial proceedings, where related to the proceeding Legislative Proceedings Between spouses Compelled by law Qualified Privilege Defense Scenarios In the public interest, when recipient has authority to protect interest In defendant’s interest, when recipient will protect that interest In interest of recipient or third party, when defendant should disclose according to generally accepted standards of decency; such as when discussing a candidate for a job (common interest)

Answer 64

PPOC Publicity, Private, Offensive, Concern) Publicity Private life of another Information the disclosure of which would be highly offensive to a reasonable person AND Not of legitimate public concern (aka non-newsworthiness)

Answer 65

FOPA False [Light], Offensive, Publicity, Actual [Malice]) Placement of another before the public in a false light Publicity to the false-light portrayal The false-light portrayal would be highly offensive to a reasonable person AND The defendant’s actual malice as to falsity

Answer 66

OSS PI Offensive, Solitude Seclusion Private, Intentional) Intentional intrusion Intrusion upon solitude, seclusion, or private affairs AND Intrusion that is highly offensive to a reasonable person

Answer 67

AV Appropriation, Value Appropriation of another’s name or likeness Use of the value of identity for one’s own purpose or benefit

Answer 68

2d Restatement Duty: Focuses on the relationship between the parties; as reiterated by the Iowa Supreme Court, factors considered in Duty analysis under 2d Res. are relationship, foreseeability (of harm and plaintiffs), and public policy 2d Restatement employs Palsgraf approach, giving the “reasonable person” the knowledge that the actual parties had in the case at issue

Answer 69

2d Restatement Causation: gives significant distinction between the matter-of-law parts of causation (foreseeability, legal) and the matter-of-fact parts of causation (scientific and substantial), but also because of the foreseeability overlap with duty, the 2d Restatement paves the way for the merging of portions of duty and causation. Substantiality factors include 1) lapse of time, 2) other causal factors, and 3) the continuous and significant impact, or lack thereof, of defendant’s actions on the injury Very significant to remember here: Substantial causation is not really the grandfather to “scope of liability” in 3d Restatement, “foreseeability” is. Substantial causation is rather the degree to which we’ll consider the scientific causation.

Answer 70

OLA Official, Limited, All An all-purpose public figure, who is a person pervasively involved in matters of public interest A limited-purpose public figure, who is a person thrust to the forefront of an issue of public interest, and may include an involuntary public figure A public official, whose official status is relevant to the expression

Answer 71

FCC Form, Content, Context Content, such as the subject matter of a lawsuit Form, such as a telephone conversation or a newspaper story Context, such as overarching public controversy

Answer 72

BAD APE Burden, Actual, Damages, Appeal, Proved, Expression Expression “of and concerning the plaintiff” Actual malice as to falsity for any damages Actual malice as to falsity proved by clear and convincing evidence Plaintiff’s burden to prove falsity of fact Recovery only for actual damages proved, and no presumed damages AND On appeal, independent review of the factual record to ensure that actual malice as to falsity is supported by substantial evidence

Answer 73

At least negligence as to falsity for any damages Actual malice as to falsity for presumed damages Actual malice as to falsity for punitive damages AND Proof of actual malice, when required, by clear and convincing evidence

Answer 74

IC PIPE Intentional, Contract, [not to] Perform, Improper, Pecuniary, Expensive Intentional interference Improper interference Interference with contract (except to marry) Interference by inducing or causing a third party not to perform OR by causing plaintiff’s performance to be more expensive or burdensome AND Resulting pecuniary loss

Answer 75

IP PIPE Intentional, Prospective, Preventing, Improper, Pecuniary, Enter Intentional interference Improper interference Interference with prospective contractual relationship (except to marry) Interference by inducing or causing a third party not to enter into or continue a prospective contractual relationship with plaintiff OR preventing plaintiff from acquiring or continuing a prospective contractual relationship AND Resulting pecuniary loss

Answer 76

PROM SAC Proximity, Relations, [Interests of the] Other, Motive, Social, Advanced, Conduct (Chiefly) nature of the actor’s conduct Actor’s motive Interests of the other with whom the actor interferes Interests sought to be advanced by the actor Social interests in protecting the freedom of action of the actor and contractual interests of the other Proximity or remoteness of the actor’s conduct to the interference Relations between parties

Answer 77

Employment relationship existed AND Termination was contrary to public policy

Answer 78

Discretionary policy judgments pursuant to legislative directives (number one exception) Defamation and misrepresentation are excluded in variable culpability as well as for law enforcement Certain specified activities, such as the postal services Occurred abroad Claim arises out of the combatant activities of military or navy during time of war Certain specified torts, generally those that tend to arise from intent fault, except as to physical abuses by law enforcement officers

Answer 79

(DCCRPP, Defendant’s Conduct Compared to Reasonably Prudent Person) Defendant’s Conduct Compared To Reasonably Prudent Person

Answer 80

(LSA, Likelihood, Severity, Avoiding) Foreseeable likelihood that defendant’s conduct would cause harm Foreseeable severity of any resulting harm Defendant’s burden in avoiding the harm

Answer 81

Zone of Danger (ISED, Immediate, Serious Emotional Distress) Defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm, AND That danger caused the plaintiff serious emotional distress

Answer 82

Bystander Rule - based on the Dillon v. Legg case, where a child was killed by an automobile right in front of mother and mother was allowed to recover for emotional injury. Recovery allowed when (PARSED, Present and Aware, Related, Severe Emotional Distress) The plaintiff is closely related to an injured victim (usually immediate family) The plaintiff is present at the time of the injury-producing event and is then aware that the injury is occurring AND The plaintiff as a result suffers severe emotional distress, not abnormal under the circumstances, but as one might expect, beyond that of the disinterested witness

Answer 83

NACCD, Negligently, Announcement, Corpse, Contaminated, Distress) Defendant negligently Delivered erroneous announcement of death or illness Mishandled corpse or bodily remains, OR Contaminated food with repulsive foreign object AND Caused plaintiff serious emotional distress Mishandling of a corpse does not need to be witnessed by the plaintiff

Answer 84

Negligent Misrepresentation (NFC RCK, Negligently, False, Course, Relied, Contractual, Known) Defendant negligently provided false information during the course of their business or profession Plaintiff justifiably relied upon the false information and suffered pecuniary loss as a result Plaintiff was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied A defendant who negligently provides information for a particular purpose is not liable for the plaintiff’s financial loss if the plaintiff used the information for a different purpose

Answer 85

Factors for Calculating Compensatory Damages (HC HT HM, Harm Caused, Harm Traceable, Harm Mitigated) Initial Physical Harm caused by defendant’s negligent act Subsequent Harm (physical, economic, emotional) that is traceable to initial harm Steps taken by the plaintiff to mitigate that initial harm

Answer 86

Intentional Interference w/ Contract Elements (IIIPL, Intentional, Improper, Interference, Perform[/ance], Loss) Intentional interference Improper interference Interference with contract (except to marry) Interference by inducing or causing a third party not to perform, OR by causing plaintiff’s performance to be more expensive or burdensome AND Resulting in pecuniary loss

Answer 87

Deadly Force - the defendant may use deadly force only if the defendant reasonably believes that (FPP, Force, Peril, Prevent): The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and The defendant can safely prevent the peril only by the immediate use of deadly force

Answer 88

When can Merchant’s Privilege be used (IRA, Investigating, Recapturing, Arrest) Investigating Recapturing Facilitating an arrest

Answer 89

A merchant is entitled to Merchant’s Privilege when the merchant (BTP, Believes, Taken, Pay) Reasonably believes that the other has wrongfully Taken/is attempting to take merchandise, or Failed to pay

Answer 90

Merchant’s use of force must be (PRT, Premises, Reasonable, Time) On or near the premises, Reasonable, and For a reasonable time

Answer 91

Assault Elements (AIDI, Apprehension, Imminent, Defendant’s, Intent): The plaintiff’s reasonable apprehension Of an imminent harmful or offensive bodily contact Caused by the defendant’s action or threat With the intent to cause either the apprehension of such contact or the contact itself

Answer 92

Public Nuisance Alternate Elements (PUSH PPVS, think: Push Pay-Per-ViewS, Public, Unreasonable, Safety, Health, Peace, Property, Violated, Special) Condition interfered with a public right (such as a noxious smell) The interference was unreasonable, meaning it either Significantly affected public health, safety, peace, or property rights OR Violated an ordinance, statute, or administrative regulation AND The plaintiff suffered special damages (different from the public at large) If a private individual brings a public nuisance claim, it must have suffered harm that was different from the public at large

Answer 93

Private Nuisance - a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land Elements (IFOUSDD, Interference, Fault, Outweighs, Undue, Suited, Double Duty) Substantial interference by defendant from its land with plaintiff’s use and enjoyment of its land, according to the experience of an ordinary member of the community AND Either Fault, meaning intent to act and knowledge with substantial certainty in the interfering result; AND interference that is unreasonable, meaning: Gravity of harm outweighs the utility of defendant’s conduct Defendant can avoid the harm in whole or in part without undue hardship OR Plaintiff’s use and enjoyment is well suited to the character of the locality, while defendant’s is not OR Fault, meaning defendant’s double-duty intent, recklessness, negligence, or abnormally dangerous activity

Answer 94

BASICS (SU, Substantial, Unreasonable) - Liability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both: Substantial - offensive, inconvenient, or annoying to a normal, reasonable person in the community - AND Unreasonable - effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies one of the Private Nuisance Subtypes Thus, a plaintiff who is not bothered by an interference with the use and enjoyment of his property (called a “thick skinned plaintiff”) can still prevail so long as a normal, reasonable person in the community would find the interference offensive, inconvenient, or annoying

Answer 95

Private Nuisance Subtypes (PLASM, Per se, Location, Avoidable, Severe, Malicious) Per se nuisance - defendant’s conduct, in & of itself, is a nuisance Conduct Unsuited to Location - Defendant’s conduct is unsuited to location and plaintiff’s use & enjoyment of property are suited to location Avoidable Harm - Defendant’s failure to exercise reasonable care regarding risk of harm caused interference Severe Harm - Plaintiff’s land or fixtures sustained physical damage Malicious Conduct - Defendant’s activity or condition created by defendant is motivated entirely or almost entirely by malice

Answer 96

Special Relationships imposing a duty to protect others (ECC SHIP, Employer, Carrier, Custodian, Shopkeeper, Hospital, Innkeeper, Parent) Parent/Child Hospital/Patient Employer/Employees Shopkeeper/business invitees Common Carrier/Passengers Common Carriers are NOT strictly liable; rather, they are liable for injuries resulting from a failure to provide the highest level of care consistent with business operations Custodian/Person in custody Innkeeper/guests

Answer 97

SL Intrusion by Livestock (FILTH, Foreseeable Intrusion Land, Typical Harm) Foreseeable intrusion of livestock onto land of another and Intrusion causes physical harm typical of livestock Strict liability for livestock is limited to the owner of the livestock, not to the owner of the land on which the livestock is grazing, unless the landowner had the right to possess the animals

Answer 98

SL Wild Animals (U LURCH, Undomesticated, Likely, Unless Restrained, Caused Harm) Category of typically undomesticated animal Likely to cause personal injury Unless Restrained and Animal caused physical harm due to animal’s abnormal danger

Answer 99

SL Abnormally Dangerous Animals (TKH, Tendencies, Knows, Harm) Animal with dangerous tendencies other than what animals in that category typically lack (i.e. rapid dog) Owner/possessor knows or should know of danger and Physical harm results from that danger

Answer 100

Strict Product Liability Elements (SBDCH, Seller, Business, Defective, Caused, Harm) Defendant is a seller/distributing of the product Defendant is in the business of selling/distributing the product Product is defective Defect proximately caused the harm alleged AND The harm was to person or property

Answer 101

Design Defect Elements (FANS, Foreseeable, Alternative, Not Safe) - no liability for “good whiskey” or “good tobacco,” because while unavoidably dangerous, it is common knowledge Foreseeable Risk - manufacturer knew or should have known Reasonable Alternative Design - risk vs. utility balancing AND Not Reasonably Safe (tests vary jurisdictionally) - self-referential, Wade factors, or consumer expectations test

Answer 102

When the plaintiff is a public figure, the defendant must have acted with actual malice, which requires (KFR DTF, Knowledge False, Reckless Disregard Truth Falsity): Defendant either Had knowledge the statement was false, OR Acted with reckless disregard as to the truth or falsity of the statement

Answer 103

In order for the attractive nuisance doctrine to apply, the child, due to his youth, must not appreciate the danger presented by the condition. Even if there are adequate warnings, if the child does not believe that the warnings are accurate and that instead the situation is actually NOT dangerous, this will serve to help establish attractive nuisance.

Answer 104

NO. A mistaken belief (even if reasonable) that the defendant legally possessed the chattel subject to conversion does not absolve the defendant from liability for conversion.

Answer 105

The economic loss doctrine prohibits strict product liability claims for purely economic loss. There must be proof of physical harm. Physical harm can include bodily or property damage, but cannot be limited to only harm to the defective product itself.

Answer 106

Plaintiff must prove: 1. EITHER ...a) The defendant knowingly made a false statement about the plaintiff ...OR ...b) Negligently failed to determine its falsity (failed to use reasonable care) 2. That type of statement would tend to harm the plaintiff's reputation AND 3. The defendant intentionally or negligently communicated that statement to a third party

Answer 107

NO. Someone who merely used a defective product to provide a service is not subject to strict products liability for any harm to persons or property caused by the defect.

Answer 108

A superseding cause is an unforeseeable intervening cause. Because it is unforeseeable, it can function to BREAK the chain of causation between the defendant and the plaintiff

Answer 109

YES. When a defendant has a special relationship with a plaintiff, such as a doctor-patient relationship, the defendant can be liable for negligent infliction of emotional distress for conduct such as misdiagnosing an illness that causes the plaintiff to suffer a severe emotional reaction.