Torts Flashcards

Question

Defamation

Answer 1

1. Defamatory communication 2. Plaintiff is ID'ed 3. Publication to at least 1 party 4. damage caused by publication 5. fault (negligence or malice, if it's public official) 6. falsit Truth is absolute defense

Answer 2

Intrusion on seclusion - D's intrusion into private affairs; highly offensive to reasonable person False Light - public facts; placed P in false light; highly offensive to RP; actual malice Appropriation - D's unauthorized appropration of P's likeness/identiy; D's advantage; lack of consent; injury Private facts - D gave publicity to private life; highly offensive to RP; not a legit concern of public

Answer 3

* D provides false info resulting from his own neg * during course of his profession * causing P to justifiably rely on info * P is either in contractual relationsihp w/ D or is 3P who D should know is benefiting from info Ex: store customer who bought dangerous supplement based on clerk's misrep

Answer 4

1. Material fact 2. D knows it's false or has reckless disregard for its truth 3. intended that P rely on it 4. P justifiably relied on it 5. P suffered and can prove damages

Answer 5

Generalists - local standard Specialists - national standard

Answer 6

P cant' recvoer based on lack of informe consent if * reasonable person woudl have genreal understanding of procedure/risks given materials provided, OR * patient would reasonably have consented if so advised rebuttable presumption of valid consent when patient signs in writing per standard practice

Answer 7

Cap on damages unconstitutional under EP of FL constitution - applies regardless of number of complainants and improperly discriminates between MM victims \*\* Loss of chance of recovery - P can only recover if proves evidence of greater than even change of survival before negligence

Answer 8

Violation of penal statute/ordinance = negligence per se

Answer 9

cause of P's harm occuring after D's tortious act Superseding cause - breaks chain of proximate causation =\> D not liable * unforseeable, not set in motion by D's actions

Answer 10

Not SL - if seller willfully/unlawfully gives alcohol to minor or alcoholic, maybe liable for resulting injurie

Answer 11

comparative fault * AOR * unforeseeable misuse, alteration, modification by user * compliance w/ gov safety standards state of the art standard - look at time of manufacture, not injury * if complied, rebuttable presumption that not defective; if no, rebuttable presumption that it is unforseeable intervening causes

Answer 12

no recovery allowed when: consent obtained in accordance w/ accepted standard of med practice among similarly trained/experienced med professionals AND * reasonable person would have general understandng of proceedure, acceptable alternatives, inherent risks * based on circumstances, patien would reasonably have undergone such porcedure/treatment had he been advised Must be in writing, signed by pateint or authorized person Creates rebuttable presumption of consent

Answer 13

Damages reduced by total of all amounts paid for benefit of claims (i.e. insurance) UNLESS there's right of subrogation/reimbursement.

Answer 14

can't file PI/WD claim unless **reasonable investigaton** conducted re: **GF grounds** for negligence claim - **written opinion from expert** there stating appears to be medical negligence

Answer 15

Presuit investigation - P needs expert opinion corroborating reasonable grounds notice to Ds - Notice of intention within 90 days of filing suit (including providers seen subsquent, 2 years prior, and all med records) screening process by D - based on insurer's investigation procedures resposne from D - can reject, offer setltement, admit liability