Torts Flashcards
(226 cards)
1
Q
what are the three elements of intentional torts?
A
plaintiff must prove
1. an act
2. intent
3. causation
2
Q
what is intent?
A
the actor acts with the purpose of causing the consequence or the actor knows that the consequence is going to come about to a substantial certainty
3
Q
what is battery?
A
- defendant causes a harmful or offensive contract with the person of another; and
- acts with the intent to cause that contact or the apprehension of that contact
4
Q
what is harmful contact?
A
causes an injury, pain, or illness
5
Q
what is offensive contact?
A
a person of ordinary sensibilities would find the contact offensive
person doesn’t need to be conscious for it to be offensive
if victim is hypersensitive, and defendant knows that - can still be offensive
6
Q
battery contact?
A
can be direct, but doesnt have to be
7
Q
what is “with the person of another”?
A
includes anything connected to the plaintiff’s person
8
Q
what is the intent required for battery?
A
contact has to be intended, not the offense
9
Q
what is transferred intent?
A
when the intent to commit one tort satisfies the required intent for a different tort; this applies when a person commits:
1. a different intentional tort against the same person that he intended to harm
2. the same intentional tort against a different person
3. a different intentional tort against a different person
10
Q
what damages can be recovered for battery?
A
no proof of actual harm is required, the plaintiff can recover nominal damages
can also recover damages from physical harm flowing from the battery
11
Q
what is the eggshell plaintiff theory?
A
must accept the plaintiff as they are, even if it is much worse than the defendant expected it to be
12
Q
when are punitive damages allowed?
A
when the defendant acted outrageously or with malice
13
Q
what defense works for battery?
A
consent - can be no battery if there was express or implied consent
14
Q
what is assault?
A
defendant engages in an act that
1. causes reasonable apprehension of imminent harmful or offensive bodily contact; and
2. the defendant intends to cause apprehension of such contact or to cause such contact itself
15
Q
what is required for the plaintiff’s apprehension?
A
must be reasonable and the plaintiff must be aware of the defendant’s action
16
Q
what does the imminence element require for assault?
A
must be without significant delay
threats of future or hypothetical harm are not sufficient
17
Q
Are mere words enough for assault?
A
generally, mere words do not constitute an assault
however, words can suffice in certain circumstance if the defendant is able to carry out the threat immediately and takes action designed to put the victim in a state of apprehension, then there may be an assault
18
Q
what is the intent requirement for assault?
A
must intend to cause either:
1. an apprehension of imminent harm or offensive contact; or
2. the contact itself
19
Q
what damages are recoverable for assault?
A
no proof of actual damages required, can get nominal damages
can recover from physical harm flowing from assault
punitive damages where appropriate
20
Q
what is intentional infliction of emotional distress?
A
defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress
21
Q
how is the intent requirement satisfied for IIED?
A
defendant must intend to cause severe emotional distress or act with recklessness as to the risk of causing severe emotional distress
22
Q
what does extreme and outrageous conduct entail?
A
conduct that exceeds the possible limits of human decency, so as to be extremely intolerable in a civilized society
more likely to find this if: (1) the defendant is in a position of authority or influence over the plaintiff; or (2) the plaintiff is a member of a group that has heightened sensitivity
23
Q
how can a public figure prove IIED?
A
must show that the words contain a false statement of fact that was made with actual malice
24
Q
what is actual malice for IIED?
A
with knowledge that the statement was false or with reckless disregard of its potential falsity
25
Can a third party sue for IIED?
if the defendant directs extreme and outrageous conduct toward one party and a different party experiences severe emotional distress because of that conduct in certain circumstances:
- related bystanders
- if defendant's purpose is to cause distress to 3rd party
26
how is causation satisfied in IIED?
defendant's actions must be a cause in fact of the plaintiff's harm
27
what damages are recoverable for IIED?
plaintiff must prove severe emotional distress beyond what a reasonable person should endure
physical injury is not required
28
what are the three elements of false imprisonment?
1. defendant intends to confine or restrain another within fixed boundaries
2. the actions (or inactions) directly or indirectly result in confinement; and
3. the plaintiff is conscious of the confinement or harmed by it
29
what is required for "confined within a bounded area"?
area can be large, and it doesn't need to be stationary
BUT the person cannot escape it
30
what are the methods of confinement?
use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape
there can be false imprisonment when the defendant refuses to perform a duty to help the victim escape
31
what is the shopkeeper's privilege?
a merchant can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter
32
does time of confinement matter for false imprisonment?
No
33
how is intent satisfied for false imprisonment?
defendant must act:
1. with the purpose of confining the plaintiff; or
2. knowing that the plaintiff's confinement is substantially certain to result
defendant's negligence can't cause false imprisonment, but transferred intent applies
34
what damages are recoverable for false imprisonment?
nominal damages and actual damages
35
what is actual consent?
the plaintiff, by words or actions, manifests the willingness to submit to the defendant's conduct
BUT - conduct cannot exceed scope of the consent
36
is consent by mistake valid?
valid unless the defendant caused the mistake or knew of it and took advantage of it
37
is consent by fraud valid?
it is invalid if it goes to an essential matter
if only to a collateral matter, then consent is still a valid defense
38
what is presumed consent?
the plaintiff is silent (or otherwise nonresponsive) but in context, their silence and continued participation can reasonably be construed as consent
applicable in emergencies, injuries from athletic contests within the scope of the sport, and mutual consent to combat
39
what is self-defense?
use of reasonable force that is proportionate to defend against offensive contact or bodily harm
40
what is the duty to retreat?
traditionally, courts required retreat before using deadly force
most jx dont require retreat before using reasonable proportionate force
41
can the initial aggressor claim self-defense?
No unless the other party has responded to nondeadly force with deadly force
42
can a person acting in self-defense claim the defense when there are injuries to bystanders?
not liable to bystanders as long as the injury was accidental and the actor was not negligent toward the bystander
43
when is defense of others allowed?
may use reasonable force in defense of others if that person would be entitled to use self-defense
44
what is allowed to defend property?
reasonable force may be used if person believes it is necessary to stop tortious harm to property
deadly force cannot be used in defense of property
45
what is allowed for recapture of chattels?
reasonable force may be used to reclaim personal property that has been wrongfully take, but only if you first request its return
if original taking was lawful, then only peaceful means may be used
46
can force be used to regain possession of land?
common law - reasonable force permitted
modern rule - use of force not permitted, only legal process
47
when does a private citizen have the privilege of arrest?
permitted to use reasonable force to make an arrest in the case of a felony if:
1. felony has actually been committed; and
2. the arresting party has reasonable grounds to suspect that person has committed the felony
No defense to make mistake of person or if felony has been committed
48
what is trespass to chattels?
an intentional interference with the plaintiff's right to posses personal property by:
1. dispossessing the plaintiff of the chattel;
2. using or intermeddling with the plaintiff's chattel; or
3. damaging the chattel
49
how is intent satisfied in trespass to chattels?
only intend to do the interfering act; dont need to intend to actually interfere
mistake about legality is not a defense
50
what damages are recoverable under trespass to chattels?
dispossession or damage - actual damage, damages resulting from loss or use, nominal damages, or cost of repair
use or intermeddling - only actual damages
51
what is conversion?
intentionally committing an act depriving the plaintiff of possession of their chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of use of the chattel
52
how is intent satisfied in conversion?
must only intend to commit the act that interferes
mistake of law or fact are not defenses
53
what damages are recoverable under conversion?
chattel's full value at time of conversion
54
what is the difference between trespass to chattels and conversion?
more extreme the interference, more likely its conversion
factors courts consider:
- duration and extent of interference
- intent to assert a right inconsistent with the rightful possessor
- def's good faith
- expense or inconvenience to plaintiff
- extent of harm
55
what is trespass to land?
defendant intentionally causes a physical invasion of someone's land
56
how is intent satisfied in trespass to land?
defendant only has to have intent to enter the land or cause the physical invasion
intent to commit trespass is NOT required and mistake of fact is not a defense
57
what does physical invasion entail?
person can be on land, but so can objects
58
what is the difference between trespass and nuisance?
trespass always involves and actual physical invasion or intrusion
nuisance may or may involve physical invasion
59
who can bring a trespass to land claim?
anyone in possession can bring an action, not just the owner
60
what is required to recover damages under trespass to land?
no proof of actual damages is required
61
is necessity a defense to trespass?
generally available to a person who enters onto someone else's land or interferes to prevent injury or other severe harm
can be a private or public necessity
62
private necessity defense
defendant is not liable for nominal damages, but is liable for actual damages they caused
63
public necessity defense
private property is intruded on or destroyed when necessary to protect a large number of people from a public calamity
not liable for damages to property
64
what are the elements of negligence?
duty
breach
causation
harm
65
what is a duty?
a legal obligation to act a certain way. ask two questions
1. is there a duty? yes or no?
2. what is the standard of care?
- most cases - reasonable care, but there are some exceptions
66
principles of whether there is a duty
generally owed to all persons who may foreseeably be injured by the defendant's course of conduct
generally there is no duty to act affirmatively, even if failure to act appears to be unreasonable
67
how is foreseeability a factor in duty?
courts typically refer to foreseeability in whether there is a duty
68
what is the scope of duty - foreseeability of harm?
foreseeability of harm alone doesn't create a duty
most emphasize foreseeability of harm to plaintiff when evaluating the existence of a duty
69
what is the scope of duty re: foreseeability of plaintiff?
no liability to an unforeseeable plaintiff
maj (cardozo): considers whether the plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct
min (restatement): any time conduct could harm someone, there is a duty to everyone. foreseeability of plaintiff is prox cause issue
70
is there an affirmative duty to act?
generally no, but there are some exceptions
assumption of duty
placign another in danger
by authority
by relationship
71
what is the assumption of duty?
a voluntary undertaking : a person who voluntarily aids or rescues another has a duty of reasonable care in the performance of that aid or rescue
72
what is the general standard of care?
reasonably prudent person under the circumstances - objective standard
73
what standard of care is used for mental and emotional characteristics?
same standard as everyone else
74
what standard of care is given based on physical characteristics?
modified standard - reasonably prudent person with like physical characteristics
75
what standard of care is given to intoxicated people?
same standard as sober people unless intoxication was not voluntary
76
what standard of care are children held to?
modified standard - reasonable child of similar age, intelligence and experience
when engaging in adult activities (i.e. driving a car) held to objective standards for adults
77
what is the standard of care for common carriers and innkeepers?
traditional: utmost care - highest duty of care consistent with practical operation of business
today: ordinary negligence, but common carriers are still held to higher standard of care and innkeepers are ordinary negligence
78
what standard of care applies to drivers of cars?
Traditional: grossly negligent, wanton, or willful
now: general duty of reasonable careh
79
what is bailment?
when a bailee temporarily takes possession of a bailor's property
80
what is standard of care for emergency situations?
reasonable person under same circumstances
81
what are the two approaches for possessors of land?
tripartite structure
modern approach
82
what is the tripartite structure?
depends on status as an entrant
- invitees - comes onto land for material or economic purpose
- licensees - think social guest
- trespasser
83
what duty of care is owed to invitees?
duty of reasonable care to inspect property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee
non-delegable duty
84
what duty of care is owed to a licensee?
duty to make property reasonable safe or warn of hidden dangers
no duty to inspect for dangers
85
what duty of care is owed to trespassers?
no duty to undiscovered trespassers except refrain from willful, wanton, intentional, or reckless misconduct
anticipated - warn or protect from hidden dangers
flagrant - even lesser duty
86
what is the artificial nuisance doctrine?
applies to children. may be liable to injuries to children trespassing if
a. an artifical condition exists where the owner knows or has reason to know that children are likely to trespass
b. land possessor knows or has reason to know that the artiifical condition poses unreasonable risk of death or serious bodil harm
c. children, cause of age, do not discover or cannot appreciate harm
d. utility of maintaining condition is slight cmpared to risk
e. land possessor fails to exercise reasonable care
87
what is the modern (california) way?
reasonable standard of care under all circumstances for all entrants
status on land is part of "circumstances"
88
what standard of care must landlords adhere to?
maintain safe common areas
warm of hidden dangers
repair hazardous conditions
only liable to off-premises victims for artifical conditions - duty to prevent unreasonable risk of harm
89
what is breach?
violation of the standard of care
traditionally - reasonable person standard
cost-benefit analysis (hand approach): burden vs. probability of harm x severity of loss
90
how does custom impact breach?
majority practice within an industry or profession
generally - admissible but not dispositive
professionals (jd, md, cpa, or electricians) - admissible AND dispositive
91
what is informed consent?
doctors breach when patient doesnt given informed consent
- doctor must explain risks of medical procedures
- not required ot inform if
--risks are commonly known
--patient is unconscious
--patient waives/refuses info
--patient is incompetent
--patient would be harmed
92
how do statutes impact breach?
when a law or statute establishes a particualr standard of care, violate of the law constitutes a breach; this is negligence per se
93
elements of negligence per se
1. a criminal law or regulatory statute imposes a particular duty for the portection or benefit of others
2. defendant violated statute
3. plaintiff must be in the class of people statute was intended to protect
4. accident must be the kind of harm that the statute was intended to protect against, and
5. harm was caused by violation of statute
94
when is excuse a defense to breach?
may show that complying with the statute would be even more dangerous
compliance was impossible or emergency justified violation
incapacity
exercised reasonable care
vagueness
95
what is res ipsa loquitur?
in some cases, circumstantial evidence of negligence is sufficient evident of negligence
96
what are the traditional elements of res ipsa loquitur?
1. the accident was of a king that does not ordinarily occur in the absence of negligence
2. it was caused by an agent or instrumentality within the exclusive control of the defendant; and
3. it was not due to any action of the part of the plaintiff
97
what is the modern trend for res ipsa loquitur?
applies the traditional elements generously:
1. the accident is a type of accident that ordinarily happens as a result of negligence of a class of actors; and
2. the defendant is a member of that class
98
what is the procedural effect of res ipsa loquitur?
creates a permissible inference that allows the case to go to the jury
jury may infer negligence, but doesnt need to
allows circumstantial evidence to establish a prima facie case of negligence so that the issue can be determined by the jury
99
what is the "but for" causation test?
plaintiff must show that the injury would not have occurred but for the defendant's negligence
100
what happens when there are multiple tortfeasors?
it cannot be said that any of the defendants' tortious conduct necessarily was required to produce the harm
101
what happens when there are multiple possible causes?
the plaintiff cannot prove which of various possible causes actually caused the harm; or in med mal, loss of chance
102
what is the substantial factor test?
Was defendant's tortious conduct a "substantial factor" in causing the harm?
used when there are conceptual problems with causation due to multiple causes
103
what is alternative causation?
plaintiff's harm was caused by only one of a few defendants and each was negligent, and it cannot be determined which one caused the harm
courts will shift the burden of proof to the defendants
104
what is concert of action?
if two or more tortfeasors were acting together collectively and that causes the plaintiff's harm, then all defendants will be jointly and severally liable
105
what is loss of chance in med mal?
if a physician negligently reduces the plaintiff's chance of survival, then the plaintiff can recover for the loss of chance of recovery
cant recover full damages, but can recover the portion that represents their lost chance of survival
106
what is proximate cause?
scope of liability - person is liable for the kinds of risks that made her conduct negligent
ask whether the injury that occurred was within the scope of the defendant's breach
107
what is the rule of foreseeability of harm?
no liability for an unforeseeable type of harm
108
intervening v. superseding causes
intervening do not break chain of causation, superseding do
whether the injury was within the scope of what made the conduct negligent in the first place
109
when does the eggshell plaintiff rule kick in for proximate cause?
the defendant is liable for the full extent of the plaintiff's injuries even if the extent is unusual or unforeseeable
110
what are compensatory damages?
purpose is to make the plaintiff whole again
can include costs of physical injury or emotional damages
111
how are compensatory damages mitigated?
plaintiff must take reasonable steps to mitigate
can be considered a duty, but its more of a limitation on recovery
112
what are the personal injury categories of compensatory damages?
medical expenses - past and future
lost income and reduced earning capacity
pain and suffering - past and future
113
how are compensatory damages calculated for property damage?
generally, plaintiff may recover the difference in the market value of the property before and after the injury
may allow cost of repair or replacement value as an alternative measure of damages
114
what is the collateral source rule?
traditional rule: benefits or payments to the plaintiff from outside sources are not credited against the liability of any tortfeasor (not admissible at trial
modern trend: most states have passed statutes that eliminate or substantially modify the collateral source rule to avoid double recovery
115
what are punitive damages?
purpose is to punish and deter future conduct
may be available if the defendant acted willfully, wantonly, recklessly, with malice, or if an inherently malicious tort is involved
availability may be limited by statute
116
what is negligent infliction of emotional distress?
plaintiffs can recover for pure emotional harm, absent a physical injury
117
What are the circumstances under which a plaintiff can recover NIED?
1. zone of danger
2. bystander recovery
3. special relationship
4. physical manifestation
118
how does a plaintiff recover under the zone of danger?
the plaintiff was within the zone of danger of the threatened physical impact; and
the threat of physical impact caused emotional distress
think negligence version of assault
119
when can a plaintiff recovery under bystander recovery?
1. they're closely related to the person injured by the defendant
2. were present at the scene of the injury; and
3. personally observed the injury
120
what are the special relationships when someone can recover NIED?
negligent mishandling of a corpse
negligent medical information
121
Can a plaintiff recover for pure economic loss?
no
122
what is loss of consortium?
allows recovery for loss arising from injury to a family member
family members - typically spouse - can claim loss of consortium or companionship
123
what is a survival action?
brought by a representative of the decedent's estate on behalf of the decedent for claims that the decedent would have had at the time of the decedent's death
include damages resulting from personal injury or property damage
124
what is a wrongful death suit?
brought by the decedent's spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent's death
can include loss of economic support and loss of consortium
125
what is a wrongful life claim?
claim by child for defendant's negligent failure to properly perform an abortion or diagnose a congenital defect
***NOT COMMON and where it is permitted, recovery is limited to special damages attributable to disability
126
what is a wrongful birth claim?
claim by parents for defendant's negligent failure to properly perform an abortion or diagnose a congenital defect
127
what is vicarious liability?
when one person is held liable for another person's negligence
128
what is joint and several liability?
two or more defendants are each liable for a single and individisible harm to the plaintiff
each defendant is subject to liability to the plaintiff for the entire harm
plaintiff can recover all of the damages from any negligent party
129
what is indemnification?
the party held vicariously liable may seek indemnification from the party who was directly responsible
130
what is respondeat superior?
the employer is held vicariously liable for the negligence of the employee, if it occurred within the scope of employment
131
direct negligence vs. vicarious liability?
direct - employer is liable for employer's own negligence
vicarious - employer is liable for employee's negligence
132
what is detour?
minor deviation from the scope of employment - employer is liable
133
what is frolic?
major deviation from scope of employment - employer is not liable
134
Rule of vicarious liability for independent contractors?
generally, employers are not vicariously liable for tort committed by independent contractors
but if the employer retains a right of control over the way the employee does the work, then the courts will treat that person as an employee
135
when are employers liable for independent contractor's torts?
non-delegable duties
apparent agency doctrine
136
what are the non-delegable duties?
inherently dangerous activities
duties to the public or specific plaintiffs for certain types of work
shopkeepers have duty to keep premises safe for public
137
what is the apparent agency doctrine?
an independent contract is treated as an employee if
1. the injured person accepted the IC's services based on a reasonable beleif that the IC was an employee, based on manifestations from the putative employer; and
2. the ic's negligence was a factual cause of harm to one who receives the services, and such harm is within the scope of liability
138
when can business partners be held vicariously liable?
can be liable for the torts of other business partners committed within the scope of the business's purpose
139
what is negligent entrustment?
a car owner can be directly liable for negligently entrusting a vehicle to someone who is not in the position to exercise reasonable care
140
what is the family purpose doctrine?
the owner of a care may be vicariously liable for the tortious acts of any family member driving the car with permission
141
what are owner liability statutes?
owner of a car may be vicariously liable for the tortious acts of anyone driving the car with permission
142
Can parents be held vicariously liable for their minor children?
generally parents are not vicariously liable for their minor children's torts
they can be liable for their own negligence with respect to their children's conduct
143
what is dram shop liability?
commercial establishments - holds bartenders, owners, and servers liable for injuries caused when people drunk too much alcohol and injure third parties
- liability is limited to serving minors or those visibly intoxicated
social hosts (only some states) - liability for serving alcohol to a guest who is then injured or injures another
144
when is joint and several liability applied?
two or more tortfeasors
tortfeasors acting in concert
alternative liability
res ipsa loquitur used against multiple defendants
vicarious liability
145
what is contributory negligence?
if the plaintiff was negligence in some way, that negligence completely precluded the plaintiff's recovery
146
what is the last clear chance doctrine?
allows a negligent plaintiff to recover upon showing that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so
147
what is comparative fault?
plaintiff's negligence does not completely bar recovery; it limits the plaintiff's ability to recover
pure comparative negligence vs. modified comparative negligence
148
what is pure comparative negligence
the plaintiff's recovery is reduced by the plaintiff's percentage of fault
149
what is modified comparative negligence?
if the plaintiff is more at fault than the defendant, then the plaintiff cannot recover
in some jx - if the plaintiff and defendant are equally at fault, plaintiff's recovery is barred
150
what happens when there are multiple defendants?
if there is more than one, plaintiff's negligence is compared with total negligence of all defendants combined
151
what is imputed contributory negligence?
one party's negligence is imputed to another party
doesnt apply to
- child plaintiff whose parent's neglgience was a contributing cause of harm in suit against 3rd party
- married plaintiff whose spouse was contributorily negligent in causing the harm in a suit against 3rd part
152
what is assumption of the risk?
applies when a party knowingly and willingly embrace a risk for some purpose of his own
analogous to defense of consent
153
what is express assumption of risk
typically a writing
generally, parties can contract to disclaim liability for negligence
ask:
is the waiver clear?
is the waiver enforceable?
might not enforce exculpatory provision in certain situations
154
what is implied assumption of the risk?
- participant in and spectators of sporting event (knew of the risk and chose to accept the risks)
- unreasonably proceeding in the face of the known, specific risk (voluntarily encounters a known, specific risk)
ASK: whether the plaintiff unreasonably encountered the risk?
155
what is strict liability?
defendants will be liable no matter how careful they were
156
what are the three general categories of strict liability?
abnormally dangerous activities
animals
defective products
157
what is the rule for abnormally dangerous activities?
a defendant engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm
158
what are factors of abnormally dangerous activities?
- whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care
- the severity of the harm resulting from the activity
- the appropriateness of the location for the activity
- whether it has great value to the community
159
what is the scope liability for abnormally dangerous activities?
defendant is liable for the harm that flows from the risk that made the activity abnormally dangerous
160
what is a wild animal for strict liability?
as a species or a class, not customarily kept in the service of human kind
161
when is a person strictly liable for wild animals?
dangerous propensities - harm arising from that of the animal
not strictly liable to trespassers
162
when is a defendant liable for domesticated animals?
known to be dangerous - if the owner knows or has reason to know taht the particular animal has dangerous propensities
dog bite statutes
163
when is a defendant strictly liable for trespassing animals?
for reasonably foreseeable damage caused by owners animal while trespassing on another's land
exceptions: household pets or animals on public road
164
what are the defenses to strict liability?
no contributory negligence
in some jx - comparative fault diminishes recovery
assumption of the risk is a complete bar
165
what is strict products liability?
three types of product defects: manufacturing defect, design defect, and failure to warn
166
what are the elements of a strict products liability claim?
plaintiff must show:
1. the product was defective
2. the defect existed when the product left the defendant's control; and
3. the defect caused the plaintiff's injury when the product was used in a foreseeable way
167
how do you establish a manufacturing defect claim?
product deviated from its intended design
the product does not conform to the manufacturer's own specifications
168
how do you establish a design defect claim?
two test:
consumer expectation test
risk-utility test
169
what is the consumer expectation test?
productive is defective in design if it is less safe than the ordinary consumer would expect
170
what is the risk utility test?
the product is defective in design if the risks outweigh its benefits; must show that there is a reasonable alternative design
171
how do you establish a failure to warn claim?
1. there was a foreseeable risk that was not obvious to an ordinary use, and 2. were the steps taken to warn about that risk reasonable?
172
what is an inference of defect?
courts may allow proof of a defect by circumstantial evidence, especially when the defect causes the product to be destroyed
173
who can be a defendant to a products liability suit?
anyone who sells the product when it is defective is potentially strictly liable
must be in the chain of distribution and in the business of selling
174
what damages are available for strict products liability claims?
plaintiff can recover for personal injury or property damage
purely economic loss is generally not recoverable
175
what are the defenses to strict products liability claims?
1. comparative fault - plaintiffs own negligence will reduce any recovery
2. assumption of the risk is a complete bar
3. product misuse, modification or alteration - can be liable for foreseeable
4. substantial change in product (can bar recovery)
5. compliance with government standards - evidence is admissible, but not conclusive
6. state of the art defense
176
when may warranty claims be brought?
up and down the distribution chain
direct privity isnt required
177
what is the implied warranty of merchantibility?
the product is suitable for the ordinary purposes for which it is sold
178
what is the implied warranty of of fitness for a particular purpose?
the seller knows the particular purpose for which the product is being sold, and the buyer relies on the seller's skill or judgment
179
what is an express warranty?
an affirmation of fact or a promise by the seller that is part of the basis of the bargain
180
what are the defenses to breach of warranty?
disclaimers - contracts
all the normal negligence defenses
181
what are the elements of defamation?
a plaintiff must prove that the defendant:
- made a defamatory statement
- that is of and concerning the plaintiff
- the statement was published to a third party who understood its defamatory nature; and
- damage to the plaintiff's reputation results
182
what is defamatory language?
language that diminishes respect, esteem, or goodwill toward plaintiff, or deters others from associating with the plaintiff
defamatory statements must be false in order to be action, and neither is a straightforward opinion
183
what does it mean to be "of or concerning" the plaintiff?
a reasonable person must believe that the defamatory language referred to this particular plaintiff
a member of the group can bring an action only if the group is so small or the context is such that the matter can reasonably be understood to refer to that member
184
how is the publication requirement met?
the statement must be communicated to a third party
a person who repeats a defamatory statement may be liable for defamation
185
what are the constitutional requirements for defamation?
depends on type of plaintiff
public official vs. public figure vs. private individual
186
who is a public official for the purpose of defamation?
a person who has substantial responsibility or control over a government office, including a political candidate
187
who is a public figure for purposes of defamation?
general purpose public figure - a person of persuasive power and influence in society
limited purpose public figure - a person who thrusts themselves into a particular controversy
188
what are the constitutional limitations on public facing plaintiffs?
the plaintiff must prove that the person who made the statement either knew that it was false or acted with reckless disregard for the truth
189
what are the constitutional limitations on private individuals?
matters of public concern - the plaintiff must prove that the statement is false and that the person who made the statement was negligent with respect to the falsehood
not a matter of public concern - unclear what the limitations are
190
what is libel?
a written, printed, or recorded defamatory statement
191
what is slander?
a defamatory statement that is spoken
192
what are the damages for libel?
plaintiff may recover general damages (recovery without proof of measurable harm)
193
what are the damages for slander?
the plaintiff must prove special damages, except when its statements indicating slander pe se
- commission of a serious crime
- unfitness for a trade or profession
- having a loathsome disease
-severe sexual misconduct
194
what are the constitutional limits on damages for public figures?
actual malice standard shows what type of damages are available
195
what are the constitutional limits on damages for a private individual with a matter of public concern?
negligence standard is actual damages only
actual malice standard is presumed damages only
196
what are the constitutional limits on damages for a private individual with a matter of private concern?
negligence standard is general damages, including presumed damages, without proving actual malice
197
what are the defenses to defamation?
truth
consent
privileges
198
what are absolute privileges to defamation?
speaker is completely immune from liability for defamation, includes statements made:
- in course of judicial proceedings
- in course of legislative proceedings
- between spouses
- in required publications by radio and tv
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what are conditional privileges for defamation?
plaintiff must show a higher level of culpability. includes statements made
- in the interest of the defendant
- in the interest of the recipient of the statement or
- affecting some important public interest
its required that the statement is made in good faith pursuant to some duty or responsibility
200
what are privacy torts?
applies to individuals, not corporations
terminates upon death of plaintiff
201
what is intrusion upon seclusion?
defendant intrudes upon the plaintiff's private affairs, in a manner that would be highly offensive to a reasonable perosn
202
what is false light?
defendant (1) makes public facts about the plaintiff, (2) that place the plainitiff in a false light, (3) which would be highly offensive to a reasonable person
203
what is appropriation of the right to publicity?
a property-like cause of action when someone (1) appropriates another's name or likeness (2) for the defendant's advantage (3) without consent, and (4) causes injury
must be exploitative, but doesnt have to be commercial
204
what is public disclosure of private facts?
1. defendant publicizes a matter concerning the private life of another and
2. the matter publicized is
a. highly offensive to a reasonable perosn and
b. is not of a legitimate concern to the public
205
what damages are available for privacy torts?
doesnt have to prove special damages, emotional or mental distres is sufficient
206
what defenses are available for privacy torts?
consent
qualified and absolute privileges (only applicable to false light and public disclosure)
207
what are the elements of intentional misrepresentation (fraud)?
1. false representation
2. scienter
3. intent
4. causation
5. justifiable reliance
6. damages
208
how is false representation satisfied?
- must be about a material fact
- can involve deceptive or misleading statemetns
- can arise through concealing a material fact
- generally, no duty to disclose material facts to other parties, may be an affirmative duty
209
how it the scienter requirement established?
defendant knows that the representation is false or acted with reckless disregard for its falsity
210
how is the intent requirement of fraud established?
defendant must intend to induce the plaintiff to act in reliance on the misrepresentation
211
how is the causation requirment of fraud met?
misrepresentation must have caused the plaintiff to act or refrain from acting
212
how is justifiable reliance satisfied?
reliance is not justifable if the facts are obviously false or it is clear that the defendant was stating an opinion
213
what are the damages for fraud?
plaintiff must prove actual, econominc, pecuniary loss
nominal damages are NOT available
most jx - recovery is the benefit of the bargain - difference between the actual value received in the transaction and the value that would have been received if the misrepresentation were true
some jx - only out of pocket losses
214
what is negligent misrepresentation?
failure to take due care in providing information
STRICTLY IN A BUSINESS CONTEXT
215
what are the elements of negligent misrepresentation?
1. defendant provided false information to a plaintiff
2. as a result of the defendant's negligence in preparting the information
3. during the course of a business or profession
4. causing justifable reliance and pecuniary loss; and
5. the plaintiff is either in a contractual relationship or a 3rd party known by plaintiff to be a member of the limited froup for whose benefit the information is supplied
216
what are the defenses to negligent misrepresentation?
normal negligence defenses exist
217
what are the damages for negligent misrepresentation?
plaintiff can recover reliance and consequential damages if the negligent representation is proven with sufficient certainty
218
what is intentional interference with a contract?
1. a valid contract existed between the plaintiff and a third party
2. defendant knew of the contractual relationship
3. defendant intentionally interfered with the contract, resulting in a breach
4. the breach caused damages to the plaintiff
contract must be valid and cannot be terminable at will
may be liable when prevents a party from fulfilling contractual obligations or substantial adds to the burden
defs conduct must exceed fair competition and the free market
219
what is interference with a prospective economic advantage?
defendant intentionally interferes with a prospective business relationship or benefit between the plaintiff and a third party, in absence of a contract
the elements are the same for intentional interference with a contract, but the conduct must be independently wrongful
220
what is misappropriation of trade secrets?
plaintiff owns information that is not generally known
plaintiff has taken reasonable precautions to protect it and
defendant acquires the secret by improper means
221
what is trade liable?
doesnt have to necessarily damage a business's reputation
publication
of a false or derogatory statement
with malice
relating to the plaitniff's title to their business, the quality, or quality of products and
causes speciation damages as a result of interference with or damage ot business relationships
222
what is slander of title?
publication
of a false statemetn
derogatory to the plaintiff's title
with malice
causing special damages
diminishes value in the eyes of third parties
223
what is malicious prosecution?
a person intentionally and liciously institutes or pursues a legal action for an improper purpose, without probable cause and the action is dismissed in favor of the person against whom it was brought
224
what is abuse of process?
defendant sets in motion a legal procedure in the proper form but has abused it to achieve some ulterior motive
some willful act perpetrated in the use of the process that is not proper in the regular conduct of that proceeding
conduct must also cause damages
225
what is the minority approach to negligence per se?
defendant's violation of a statute creates a rebuttable presumption of breach
226
when is an employer liable for the intentional torts of its employee?
when (1) reasonable force is inherent in and committed during the employee's job or (2) the employee is authorized to act on the employer's behalf and has a position that provides an opportunity to commit the tort.
