Torts Flashcards

Question

FL distinction relevant to protective privilege

Answer 1

iii. amount of force is “necessary” force to prevento excessive force = Lo ex. someone goes to punches you in the face, but you can’t take a knife and plunge into your chesto ex. if someone is using deadly force, then you may respond in a deadly fashion; if someone is lunging at you with a knife, you can take out a gun and shoot themo FL DISTINCTION: You are presumed to have a reasonable fear of death/great bodily harm and are allowed to use deadly force if someone enters a dwelling or an occupied vehicle (car jacking). o NOTE: The rule of proportionality prohibits us from using deadly force to protect personal property (no guns to save your laptop)o NOTE: You can’t do by mechanical device what you can’t do in person (no booby trap; deadly mechanical devices)

Answer 2

a. only apply to the property torts (trespass to land, chattel, conversion)b. 2 situations:i. D invades P’s property in an emergency to protect community as a whole or significant group of people (often a natural disaster; a fire, usually a big one; crazed gunman in a tower picking off people one by one); into this scenario comes a hero - “the savior of the city” – needs some object that doesn’t belong to him ii. D invades P’s property to protect interest of own – not savior of city but saving himself – not treated as generously o 3 legal consequences associated with protecting own interest private necessity remains L for compensatory damages (pay for the actual harm that you do) private necessity actor immunized from nominal or punitive damages while the emergency continues, the P in the case cannot throw a private necessity D of his land; RATHER, the P must tolerate his presence, unmolested, on the land, in a position of safety; in an emergency we all have a right to sanctuary ex. D is a cross country hiker in MN in February; sudden an unexpected blizzard – broken window = pay to fix; door open and walk in, give me nominal damages of $1 out of principle = farmer loses; punitive = farmer loses – the technical trespass is disregarded in an emergency; farmer kicks him out and Dave sustains harm = farmer is L

Answer 3

private necessity remains L for compensatory damages (pay for the actual harm that you do) private necessity actor immunized from nominal or punitive damages while the emergency continues, the P in the case cannot throw a private necessity D of his land; RATHER, the P must tolerate his presence, unmolested, on the land, in a position of safety; in an emergency we all have a right to sanctuary ex. D is a cross country hiker in MN in February; sudden an unexpected blizzard – broken window = pay to fix; door open and walk in, give me nominal damages of $1 out of principle = farmer loses; punitive = farmer loses – the technical trespass is disregarded in an emergency; farmer kicks him out and Dave sustains harm = farmer is L

Answer 4

private necessity

Answer 5

1. Defamation2. Privacy

Answer 6

a. D made a defamatory statement that specifically identified the Pb. “publication” of the statement (the D must disclose the defamatory statement to 1 person other than the P – that’s enough)- DOES NOT HAVE TO BE INTENTIONALc. damage

Answer 7

tends to adversely affect reputation (typically an allegation of fact that reflects negatively on you and causes other people to think negatively of you)

Answer 8

"adversely affect"

Answer 9

False. Can by by position, for example. The attorney general of Florida is a . . . .

Answer 10

False. person has to be alive; once dead you can speak with impunity

Answer 11

at least one other person other than Pii. the more people the D tells, the more harm and the more moneyiii. does NOT have to be INTENTIONAL

Answer 12

False. The publication requirement for defamation means at least one other person other than P needs to hear the statement. ii. the more people the D tells, the more harm and the more moneyiii. does NOT have to be INTENTIONAL

Answer 13

1. liable2. slandera. slander per seb. slander not per se

Answer 14

damagesdefamationpredicated on written statement or something that is permanently captured

Answer 15

damages are presumed so P does not have to prove them; thus if they offer no evidence of damages, it still gets to the jury

Answer 16

damagesdefamationo slander per se = same treatment as liable i.e. presumedo slander NOT per se = damages must be proved

Answer 17

o slander per se = same treatment as liable i.e. presumed any statement related to 4 itemized topics (1) relating to P’s business or profession; (2) P has committed a crime of moral turpitude (deceit, dishonesty, income tax fraud physical violence; generally petty crimes like public drunkenness are NOT considered crimes of moral turpitude; (3) imputing un-chastity to a woman (P is a slut; Debbie knows the Dolphins really well; (4) suffering from a loathsome disease (when you have the disease, other people loathe you – there are only 2: leprosy AND venereal disease **** (has been on the exam)

Answer 18

 means that P has to show economic harm (ex. you got fired; can’t get a job; revenues are down at your place of business; trying to negotiate a contract and they walked away from you) SOCIAL HARM DOES NOT COUNT – ex. thrown of the bridge club or no one invites you to dinner does NOT count

Answer 19

1. consent2. truth3. the privileges (absolute and qualified)4. when the subject matter of the defamation is a matter of public concern

Answer 20

same as intentional tort consent affirmative defensea. P had legal capacityb. 2 types of consenti. express consent: explicit words granting D permission to act in a particular way (sane person says hit me = not a battery)o EXCEPTION: not a defense if obtained through fraud or duress; disregarded, invalid ii. implied consent: (2 ways) o via custom: when an individual goes to a place or engages in an activity where certain invasions are typical – the law assumes that you know what is typical and you are cool with it barber’s chair opens up and the barber starts cutting hair = can’t sue barber for battery most common = team sportso via D’s reasonable interpretation of P’s objective conduct / body language consent we are allowed to read the situations and make rational inferences from there nothing that make ultimate act of sex acceptable (coffee after the movie does not equal ok to have sex)iii. NOTE: all consent has a scope; if you exceed that scope you will be L for a tort (if you fall down and someone stomps on your foot = outside scope of consent)o if you consent to an operation on one part of your body, an operation on another part of your body is outside of the scope of consent

Answer 21

defamationo D can show that the statement is factual accurateo NOTE: D has the burden of proof for affirmative defenses

Answer 22

defamation (NOTE FL DISTINCTION BELOW)absolute privilege (2 of them) communications b/w spouses (husband writing or speaking to wife and visa versa) officers of the government acting in the official functions that relate to their jobs (in the scope of their employment) – in the judicial branch, extends to lawyers and witnesses as well, not just judges – so anything you say in open court or write in your court papers cannot be the basis of a defamation cause of actiono qualified privilege (where there is a public interest in encouraging candor) (no list – case by case basis) ex. recommendations and references ex. when you talk to police officers who are investigating a crime 2 conditions to retain the privilege: (1) must have good faith belief that the statement is accurate (you made a mistake in the letter of recommendations – honest and reasonable mistake); (2) must confine yourself to matters that are relevant (if you inject extraneous matter then no privilege) o FL DISTINCTION: if media D = will never be presumed damageso FL DISTINCTION: media D gets 5 days advance notice of your intent to sue AND, if they publish retraction within 5 days thereafter, you CANNOT get PUNITIVE damages (can get actual)

Answer 23

5your intent to suethey publish retraction within 5 days thereafterPUNITIVEactual

Answer 24

(1) must have good faith belief that the statement is accurate (you made a mistake in the letter of recommendations – honest and reasonable mistake); (2) must confine yourself to matters that are relevant (if you inject extraneous matter then no privilege)

Answer 25

be presumed; i.e. no slander per se or liable presumption

Answer 26

FL Supreme Court – attorney made some statements to witnesses that he was interviewing (informal discovery fact investigation; not in the umbrella of a formal court proceeding) – in that situation, they were NOT absolutely privileged b/c too far removed from the proceeding, HOWEVER, they said there was a qualified privilege; if he made false statements but in good faith, then insulated.

Answer 27

when the subject matter of the defamation is a matter of public concern o no hard and fast def.; anything that is newsworthy and wide-spread public interest – know it when you see ito ex. public official taking bribes; athlete taking PEDs IMPORTANT: don’t want to “chill” speech about important matters so we add two elements to their cause of action in public concern case: • P must prove the that statement is false (truth is presumed)• fault (P must demonstrate some degree of culpability; the type depends on the type of P; (1) if the P is a public figure, the statement must be made intentionally or recklessly - you knew in advance that it was fault and published it anyway or you didn’t lift a pinky to investigate (tip from the drunk on the pavement) BUT if private figure = negligence is enough – failure to reasonably investigate the accuracy

Answer 28

a. appropriation: the use of the P’s name or image in a commercial context b. intrusion: an invasion of the P’s physical seclusion in a way that is highly offensive to the average personc. placing the P in a false light: the widespread dissemination of a major falsehood about the P that would be highly offensive to an average person (the tort of false gossip) - FL DISTINCTION: no cause of action in FLd. disclosure: widespread dissemination of confidential information of about the P that would be highly offensive to an average person

Answer 29

iv. FL DISTINCTION – NO CAUSE OF ACTION FOR FALSE LIGHT

Answer 30

the use of the P’s name or image in a commercial context privacy tortEXCEPTION: there is a limit for newsworthy; saved a baby and the publish your name or image

Answer 31

an invasion of the P’s physical seclusion in a way that is highly offensive to the average personprivacyi. ex. wiretapping or secret video taping; listening a the key-hole or peeping tom.ii. must be in a place where you have an expectation of privacyiii. out on a public street, can’t complain; but hotel room yes

Answer 32

the widespread dissemination of a major falsehood about the P that would be highly offensive to an average person (the tort of false gossip)privacy tortdefamationbroaderii. ex. D is telling people that P is embezzling money when he is doing no such thing – this is also defamation; in that kind of a fact pattern, P can sue for both false light and defamation – different damages: defamation = economic damages; false light = emotional or social damagesiii. ex. D tells them that P is Catholic when he’s actually Jewish – not defamation b/c not something to think less of; BUT CAN get false light b/c mischaracterizing religion offensive to himiv. FL DISTINCTION – NO CAUSE OF ACTION FOR FALSE LIGHT

Answer 33

widespread dissemination of confidential information of about the P that would be highly offensive to an average personi. ex. receptionist at primary care doctor mails medical information to all of your colleaguesii. EXCEPTION: newsworthy exception; if it’s newsworthy you can do it; i.e. if the Miami Herald posts medical records of Mitt Romney even if got by slightly unethical means; maybe not so much today unless he concealed it during the campaign.

Answer 34

i. consentii. the two defamation privileges: the absolute and qualified (defenses to false light and disclosure)

Answer 35

Duty, breach, causation (factual and proximate), damage

Answer 36

1. to who owed2. how much duty is owned

Answer 37

o modern answer: you owe a duty to foreseeable victims and ONLY foreseeable victims you don’t owe a duty of unforeseeable V’s.  unforeseeable V’s always lose ex. identifying them; 2 guys rushing to catch a train; train slowly exit the station; can make it by jumping on board; one man going to lose his balance; railroad employee helps push through open door; knocks loose a package with an explosive fireworks and injured Helen Palsgraph (Palsgraph) - who do you think might get hurt: himself, the other people (domino effect), drop the package and hurt someone, that’s it. what about the lady standing all the way down by the scales? no way Cardozo: not foreseeable b/c she is “outside the zone of danger” - only people in the zone of danger can recover more than likely an issue of distance first part of duty boils down to this distance issue EXCEPTION: rescuers need not be in the zone of danger (“danger invites rescue”) – once the original accident occurs, people will be drawn in to give assistance – rescuer can recover

Answer 38

hypothetical reasonably prudent person acting under similar circumstances

Answer 39

duty of care; how much is owedobjective standardo what it means: it is an OBJECTIVE STANDARD – which means it is the same for everyone in society; inflexible, rigid, uniform; everyone subject to the same standard of care . . . THEREFORE we don’t make any allowances for individual shortcomings (in fact, sometimes we demand that people do the impossible) ex. D is stupid; that D has to behave like a reasonably prudent person; he stores gas in a garage and he says I didn’t know better b/c I’m stupid – doesn’t matter ex. D is mentally disabled = law demands the same D is not L b/c he did the best he could = WRONG ANSWER – have to do the reasonably prudent person even if its impossible

Answer 40

it is impossible to do so ex. D is stupid; that D has to behave like a reasonably prudent person; he stores gas in a garage and he says I didn’t know better b/c I’m stupid – doesn’t matter ex. D is mentally disabled = law demands the same D is not L b/c he did the best he could = WRONG ANSWER – have to do the reasonably prudent person even if its impossible

Answer 41

F. You have to act as a reasonably prudent person (negligence/duty) even though it is impossible for you to do so. Ratchet up, never down.

Answer 42

F. o EXCEPTION: if the D has superior skill or knowledge, the standard is a reasonably prudent person with that skill or knowledge ex. Dave is a pro race car driver; he needs to drive his car in private like a reasonable person with that superior skill; if he hits a skid, he needs to use all the skill ex. Don dumb but knows that the street has limited visibility b/c lived there for 10 years; he has superior knowledge BUT NOTE: you can ratchet up but not downo EXCEPTION: D’s physical characteristics; where relevant, the reasonably prudent person will have the same characteristics as the D if blind; reasonably prudent person that cannot see if 6’4 and relevant then RPP for person of that height

Answer 43

o EXCEPTION: if the D has superior skill or knowledge, the standard is a reasonably prudent person with that skill or knowledge ex. Dave is a pro race car driver; he needs to drive his car in private like a reasonable person with that superior skill; if he hits a skid, he needs to use all the skill ex. Don dumb but knows that the street has limited visibility b/c lived there for 10 years; he has superior knowledge BUT NOTE: you can ratchet up but not downo EXCEPTION: D’s physical characteristics; where relevant, the reasonably prudent person will have the same characteristics as the D if blind; reasonably prudent person that cannot see if 6’4 and relevant then RPP for person of that height

Answer 44

i. childrenii. negligence claims against professionals / malpracticeiii. premises liabilityiv. Statutory Standards of Carev. Duties to Act Affirmativelyvi. Negligent Infliction of Emotion Distress

Answer 45

o under 5 = 0 duty of care, never L for negligenceo 5-18 = owe the care of a hypo child of similar age, experience, and intelligence acting under similar circumstances how alters basic default approach = almost exact opposite of RPP – it is entirely subjective; differs for every kid in our society; turns out to be very pro-D standard of care ex. first time on tricycle considered; if he’s stupid, taken into accounto EXCEPTION: if the child is engaged in an adult activity (for the most part – operating a vehicle with a motor)

Answer 46

if the child is engaged in an adult activity (for the most part – operating a vehicle with a motor)

Answer 47

subjective objectivediffers for every kid in our society; turns out to be very pro-D standard of care

Answer 48

o STANDARD: professional is obligated to exercise the skill and knowledge by members of that profession in good standing in similar communities (another way of saying it: the pro must exercise the care of an avg. member of the same profession in a similar community) now not with an imaginary person, but with real world colleagues; you open your eyes and good look; it takes a lot of judgment from the jury; rely on real world data; it’s a duty to conform (going to do brain surgery, do it the same way the other brain surgeons do it); demands this b/c collective wisdom on how to do acts and any one pro should conform b/c the group has the greater wisdom DO NOT SAY THAT a doctor must act like a reasonable doctor – reasonable is a legal term of art that implicates an imaginary standard and that’s not it – not pretend will need an expert witness NOTE: 2 types usually: (1) error in execution (slip of the hand, writes wrong dosage = do not raise intellectually difficult questions about duty of care – the custom of the profession is to cut the right nerve; (2) diagnosis or treatment plan = usually more questions b/c doctor using more judgment similar communities = primary care physicians only required to perform similar to similar sized areas – big city doctor compared to big city doctor and small town doctor to small town doctoro governs every professional in our society (doctors, lawyers, architects, and any other exotic one that might come up, chiropractors)

Answer 49

F. DO NOT SAY THAT a doctor must act like a reasonable doctor – reasonable is a legal term of art that implicates an imaginary standard and that’s not it – not pretendTHE CORRECT STANDARD IS: a professional is obligated to exercise the skill and knowledge by members of that profession in good standing in similar communities (another way of saying it: the pro must exercise the care of an avg. member of the same profession in a similar community)

Answer 50

o FL DISTINCTIONS Civil Procedure: adv. notice of sue and pre-merit evaluation Special no-fault scheme for obstetricians to protect if baby born with neurological – if agree, more speedy and guaranteed recovery NO LOCAL STANDARD OF CARE – Appalachia and Miami doctor treated the same ***************

Answer 51

o Generally: D possess a piece of property; P comes on to property and encounters hazardous condition; What degree of duty to prevent entrant from getting hurt? (depends into what type of entrant)o 4 types of entrants: undiscovered trespasser = zero duty of care; they always lose• logic: they are an unforeseeable victim discovered/anticipated trespasser (known or should expect would be there) = duty to protect only from those hazards that meet a 4 part test• ex. if there has been pattern of trespassers in the past• Test: (1) condition must be artificial (man-made; ex. of artificial is ice); (2) must be extremely dangerous; (3) must be concealed from that trespasser (they can’t see it for themselves – no duty to protect from open and obvious condition); (4) property possessor had prior knowledge of it (aka. known man-made death trap on the land)• ex. known footbridge is rotten and you know but it looks like its fine licenses: enter with permission or implied permission, but DO NOT confer an economic benefit to the possessor (ex. social guest; girl scout cookie; J witnesses) = must protect from anyone that meets a 2 part test• TEST: (1) concealed from licensee; (2) known in advance by property processor (aka, must protect from ALL KNOWN traps) (ex. an area rug on hardwood floor that doesn’t have pad) invitee: enter with permission and EITHER confer an eco benefit or the property is open to the public generally even if no eco benefit (ex. when you go to the mall; go to your barber; go to visit a friend in hospital) = 2 part test• TEST: (1) must be concealed; (2) possessor must know of the hazard in advance OR could have discovered through a reasonable inspection (aka, all reasonably knowable traps on the land) – knew or should have known (turn on whether a reasonable store would have known – didn’t actually need knowledge)• ex. foreign substance on the floor that is a tripping hazard, slip and fall caseo SPECIAL CASES: firefighter rule: firefighters and police officers never recover for injuries that are inherent risks of their occupation (if you are negligent and as a result, the firefighter gets burned, they can’t recover against you child trespassers: trespassing children are owned a duty of reasonable prudence under the circumstances with regard to any artificial condition on the property• key factor: is there something on the property that would draw children in• FL DISTINCITION: in multistate, could be attracted by object A, but injured by B and they are L; in FL, child must be injured by the thing that lured them on to the lando FL DISTINCTIONS: social guests are called "licensees by invitation” and they are treated like invitees in the multistate system (i.e. they get more protection) other types, called uninvited licensees (the J witness), they have permission but are entering for own convenience = treated like a discovered trespasser (i.e. known man made death traps) in other words, there are no licensee categories any more: only invitees, discovered trespassers, and undiscovered trespassers by statute: a person engaged in a felony on property gets no duty of care; never L to someone committing a felony on your property (that’s the CL rule for the most part b/c most felons are uninvited) o Exam Taking Tip: if you have a duty, the way to satisfy the duty is to either fix the problem OR GIVE A WARNING• aviso piso mojado

Answer 52

undiscovered trespasser = zero duty of care; they always losediscovered/anticipated trespasser (known or should expect would be there) = duty to protect only from those hazards that meet a 4 part testlicensees: enter with permission or implied permission, but DO NOT confer an economic benefit to the possessor (ex. social guest; girl scout cookie; J witnesses) = must protect from anyone that meets a 2 part testinvitee: enter with permission and EITHER confer an eco benefit or the property is open to the public generally even if no eco benefit (ex. when you go to the mall; go to your barber; go to visit a friend in hospital) = 2 part test

Answer 53

•duty to protect only from those hazards that meet a 4 part test Test: (1) condition must be artificial (man-made; ex. of artificial is ice); (2) must be extremely dangerous; (3) must be concealed from that trespasser (they can’t see it for themselves – no duty to protect from open and obvious condition); (4) property possessor had prior knowledge of it (aka. known man-made death trap on the land)• ex. known footbridge is rotten and you know but it looks like its fine

Answer 54

 licensees: enter with permission or implied permission, but DO NOT confer an economic benefit to the possessor (ex. social guest; girl scout cookie; J witnesses) = must protect from anyone that meets a 2 part test• TEST: (1) concealed from licensee; (2) known in advance by property processor (aka, must protect from ALL KNOWN traps) (ex. an area rug on hardwood floor that doesn’t have pad)

Answer 55

 invitee: enter with permission and EITHER confer an eco benefit or the property is open to the public generally even if no eco benefit (ex. when you go to the mall; go to your barber; go to visit a friend in hospital) = 2 part test• TEST: (1) must be concealed; (2) possessor must know of the hazard in advance OR could have discovered through a reasonable inspection (aka, all reasonably knowable traps on the land) – knew or should have known (turn on whether a reasonable store would have known – didn’t actually need knowledge)• ex. foreign substance on the floor that is a tripping hazard, slip and fall case

Answer 56

o SPECIAL CASES: firefighter rule: firefighters and police officers never recover for injuries that are inherent risks of their occupation (if you are negligent and as a result, the firefighter gets burned, they can’t recover against you child trespassers: trespassing children are owned a duty of reasonable prudence under the circumstances with regard to any artificial condition on the property• key factor: is there something on the property that would draw children in• FL DISTINCITION: in multistate, could be attracted by object A, but injured by B and they are L; in FL, child must be injured by the thing that lured them on to the land

Answer 57

o SPECIAL CASES: firefighter rule: firefighters and police officers never recover for injuries that are inherent risks of their occupation (if you are negligent and as a result, the firefighter gets burned, they can’t recover against you child trespassers: trespassing children are owned a duty of reasonable prudence under the circumstances with regard to any artificial condition on the property• key factor: is there something on the property that would draw children in• FL DISTINCITION: in multistate, could be attracted by object A, but injured by B and they are L; in FL, child must be injured by the thing that lured them on to the lando FL DISTINCTIONS: social guests are called "licensees by invitation” and they are treated like invitees in the multistate system (i.e. they get more protection) other types, called uninvited licensees (the J witness), they have permission but are entering for own convenience = treated like a discovered trespasser (i.e. known man made death traps) in other words, there are no licensee categories any more: only invitees, discovered trespassers, and undiscovered trespassers by statute: a person engaged in a felony on property gets no duty of care; never L to someone committing a felony on your property (that’s the CL rule for the most part b/c most felons are uninvited)

Answer 58

fix the problem ORGIVE A WARNING

Answer 59

negligence per secriminal statute that regulates behavior that also causes injury and the P will try to use the statute “borrow” the substantive component of the criminal law and use it as the duty standard – instead of with reasonable person, they had a duty to stop at the red light. Violation of that stat command is violation of the duty of care – NEGLIGENCE PER SE negligence per se

Answer 60

o 2 part test P must demonstrate that he is a member of the class of persons that the statute seeks to protect AND accident is in the class of risks that the statute seeks to prevento cluster of statutes that almost always give rise to negligence per se = motor vehicle statuteo NOTE: motor to obvious; they test on other things: ex. relax, gets stoned, huge explosion, gas had built up into cloud; class A misdemeanor – more than 1 year. What risk criminalizing MJ designed to protect? They weren’t thinking about people blowing up their apartments. Designed to protect user. o EXCEPTIONS: where meets the test but still don’t use statutory compliance would be more dangerous stat compliance impossible under the circumstances

Answer 61

o FL DISTINCTION: traffic violation is only evidence of negligence – means D can rebut and explain (my friend was in the car with me and having a heart attack – I behaved like a reasonable person)

Answer 62

o there are NO DUTIES to act affirmatively – i.e. never have a duty to engage in an activity – if you don’t want to get in the car, you don’t have to; only when you choose to get in your car that you must do so as a reasonably prudent persono on bar: no duty to rescue; they will try to distract you with irrelevancies. appeal to your emotion; D cold heartedo EXCEPTION: if there was a preexisting relationship; historically had to be somewhat formalized (common carrier; innkeeper) / modern trend: two people go to dinner (aka, if stranger, no duty to rescue) if D caused the peril  NOTE: DUTY IS TO ACT REASONABLY UNDER THE CIRCUMSTANCES, but you are not obligated to put your own life in peril. (hotel on fire = call fire department, increase water pressure on sprinkler) if no duty to rescue, but do any way, you could be L; FL DISTINCTION: good Samaritan statute but mostly meaningless

Answer 63

F. NOTE: DUTY IS TO ACT REASONABLY UNDER THE CIRCUMSTANCES, but you are not obligated to put your own life in peril. (hotel on fire = call fire department, increase water pressure on sprinkler)

Answer 64

creates a duty; generally a careless D, but no physical injury to P 3 scenarios:• near miss: P put in a zone of danger (near miss) + they were emotional hurt by it (almost hits him with the car and felt like he was going to die - anxiety) + suffered subsequent physical manifestation flowing from the incident (he has a heart attack; break out in hives+ FL DISTINCTION: not enough that zone of danger – has to be SOME contact with your body; “physical impact” – the side mirror disturbs his tie; the pellets of gravel hit his body = satisfies• bystander case: D badly injures or kills X, and P is sad b/c P is injured or dead+ different emotion from near miss; sadness vs. anxiety+ must be close family member (spouse, child and parent – don’t worry about the rest) AND+ P must see as it happened (FL DISTINCTION: if you arrive on the scene while the injured party is still there; don’t have to see)• relationship cases: preexisting business relationship + highly foreseeable that careless performance will cause distress+ ex. patient and medical lab; totally foreseeable that lab screw up will cause distress; positive HIV when not positive; or lost stay of execution paperwork

Answer 65

• near miss: P put in a zone of danger (near miss) + they were emotional hurt by it (almost hits him with the car and felt like he was going to die - anxiety) + suffered subsequent physical manifestation flowing from the incident (he has a heart attack; break out in hives+ FL DISTINCTION: not enough that zone of danger – has to be SOME contact with your body; “physical impact” – the side mirror disturbs his tie; the pellets of gravel hit his body = satisfies

Answer 66

a. Generally: P must identify specific wrongful conduct + give theory on why wrongfuli. the bad behavior can be action or inactiono action: ex. 8 martinis b/f driving; just give obvious theory . . . reasonable people don’t drink before etc. b. res ipsa

Answer 67

o 2 part showing: accident was one normally associated with negligence (an appeal to common knowledge; when barrels fall out of windows, something went wrong – maybe they were stacked to high; properly handled, barrels stay in the building) accident probably due to someone in D’s position (evidence: ITEM WAS IN exclusive control of D)o substitutes for evidence of breach BUT DOESN’T ALWAYS MEAN P wins = it’s a ticket into the jury room

Answer 68

False. o substitutes for evidence of breach BUT DOESN’T ALWAYS MEAN P wins = it’s a ticket into the jury room

Answer 69

i. where P establishes link between breach and injury sufferedii. NOTE FOR SOUND OF ESSAY: Ds are not factual causes; breaches are factual causes, so when writing: Dave’s breach was a factual cause. ALSO, never say “the cause;” always “a cause.” infinite number of reasons for anything – decision to be in class is b/c went to law school etc. iii. RULE (but for test): P argues that but for the breach, he would be uninjured today. (parallel universe everything happens the same except for the breach)iv. ALTERNATE RULES: o merged causes: 2 negligent Ds; both release a destructive force; the forces merge to hurt P ex. 2 fires; Dave smoking a cigarette creates forest fire (FIRE A); camper (FIRE B); they combine to burn his house TEST: was the breach a “substantial factor”• substantial factor if it could have done it by itself RESULT: joint Lo unascertainable cause case: (Summers v. Tice)  ex. 3 people quail hunting; shotgun; fire in front of Moe; one pellet hits Moe and blind; one D blinded and one caused nothing; who fired the pellet? the fired at the same instance – 50/50 . . . can’t show more likely than not – shift the burden of proof  RULE: it is up to do D to show wasn’t them – joint and several L

Answer 70

causationmerged causes: 2 negligent Ds; both release a destructive force; the forces merge to hurt P ex. 2 fires; Dave smoking a cigarette creates forest fire (FIRE A); camper (FIRE B); they combine to burn his house TEST: was the breach a “substantial factor”• substantial factor if it could have done it by itself RESULT: joint L

Answer 71

causationRULE: it is up to do D to show wasn’t them – joint and several L

Answer 72

fairness (fair to hold D L)foreseeability

Answer 73

o intervening medical negligence: D runs red light; cast put on by incompetent doctor; gang green; amp. leg = L for amp. leg – medical malpractice foreseeable.o intervening negligent rescue: broken leg man; drags to side; dislocated shoulder = he’s L for broken leg and shouldero intervening protection or reaction forces: other peds panic and in reaction they stamped to get out of the way; Nike on forehead of P = D is Lo subsequent disease or accident: guy on crutches b/c of accident; falls; D the prox cause

Answer 74

a. egg shell scull principle: D L for all harm done EVEN if surprisingly great in scope; take your P as you find you Pi. ex. neighbor invites to cocktail party; drunk; bump into other guest; falls; hurt; Sally Fields with brittle bones = have to pay her for that – Boniva. ii. APPLIES TO EVERY TORT ON THE BAR – INCLUDING INTENTIONAL TORTSb. FL DISTINCTIONS: limits on punitive but not tested

Answer 75

all of themegg shell scull principle: D L for all harm done EVEN if surprisingly great in scope; take your P as you find you P

Answer 76

1. comparative negligence: any evidence that the P has not been appropriately careful can be introduced by the D (ex. violate a statute like J-walking) – admissible and relevant and weight each by jury; give percentage numbers to P and D; once % made, P reduced damagesa. recovery reduced by own percentage faultb. FL DISTINCTION: if P was drunk + greater than 50% = P recover 0

Answer 77

A. Injuries cause by animals (2)B. Abnormally Dangerous ActivitiesC. SL for Products (don’t assume b/c product its SL)

Answer 78

a. domesticated animals: house pets and livestock = NOT STRICLY L, HOWEVERi. yes SL if knowledge of vicious propensitieso not occasional kick by horseo usually dog bites; once it has previously bitten = knowledge that vicious propensities (bites 2-infiniti are SL)o BUT NEVER SL if bites trespasserii. FL DISTINCTION: strict L for dogs REGARDLESS of vicious propensity HOWEVER, the rule does not apply to trespasser AND no SL to visitor etc. but has to have two words: “BAD DOG”b. wild animals = SLi. REGARDLESS OF ALL THE SAFETY PRECAUSIONS! Dave with Tiger and a million locksii. what’s a wild animal? it will be obvious

Answer 79

a. domesticated animals: house pets and livestock = NOT STRICLY L, HOWEVERi. yes SL if knowledge of vicious propensitieso not occasional kick by horseo usually dog bites; once it has previously bitten = knowledge that vicious propensities (bites 2-infiniti are SL)o BUT NEVER SL if bites trespasserii. FL DISTINCTION: strict L for dogs REGARDLESS of vicious propensity HOWEVER, the rule does not apply to trespasser AND no SL to visitor etc. but has to have two words: “BAD DOG”

Answer 80

1. TESTa. creates foreseeable risk of harm, even when reasonable care is exercised ANDb. activity not common in community where D conduct it2. Abnormally Dangerous Activitiesa. blastingb. extremely toxic materials (live Ebola virus)c. nuclear energy or radioactive material3. Safety precautions are irrelevant

Answer 81

safety precautions (ex. wild animal well chained and in cage that is checked and guarded 24/7)

Answer 82

1. ELEMENTS:a. D must be a merchanti. one who routinely deals in goods of this typeo versions:  casual sellers: ebay, garage sale = NOT a merchant service providers: restaurant, doctor, hair salon, makes product incidental to service = NOT merchant for those products (doctor does not deal in chairs) commercial lessors (those who rent) = YES (car rental company) every party in a distro chain is a merchant = YES (Home Depot and Black and Decker) (i.e. no privity of contract requirement)b. product must be defective (3 kinds)i. manufacturing defect: differs from all other on assembly line in a way that makes it more dangerous would expect (aka, the one in a million) – one in a million hair dryer etc. o safety precautions irrelevant - - - we x-ray every can of tuna fishii. design defect (imagined alternative-if we can imagine the alternative then L)o imagined alternative must be safer ANDo economical (about same cost or a little more) ANDo must be practical (can’t make the product hard to use ex. more slats on cribiii. information defecto has residual risks (those that cannot be designed out) that consumer cannot perceive ANDo lacks adequate warnings AND adequate: not all warnings not equal – in pg. 6 of the instructions; bilingual community; pictures instead of wordso product has not been altered AND presumption that it has not been if has moved in ordinary channels of distro (got it from Home Depot and they got it from manufacturer) only relevant if bought used product – have to show it didn’t have the safety guard when it left manufacturers/vendors handso P is making a foreseeable use (need not be an intended use) use a stair to stand out – foreseeable use even though not intended

Answer 83

b. product must be defective (3 kinds)i. manufacturing defect: differs from all other on assembly line in a way that makes it more dangerous would expect (aka, the one in a million) – one in a million hair dryer etc. o safety precautions irrelevant - - - we x-ray every can of tuna fishii. design defect (imagined alternative-if we can imagine the alternative then L)o imagined alternative must be safer ANDo economical (about same cost or a little more) ANDo must be practical (can’t make the product hard to use ex. more slats on cribiii. information defecto has residual risks (those that cannot be designed out) that consumer cannot perceive

Answer 84

i. comparative responsibility: evidence that P acted stupidly, assign percentage and decrease damages accordingly (one in a million toaster that sparks but he doesn’t unplug)

Answer 85

V. Nuisance (very subjective)A. ELEMENTS:1. interference with ability to use and enjoy property to an unreasonable degreea. most cases: inconsistent land use; smoke factory next to asthma place ORb. shining lights into neighbors propertyB. RESULT: courts balance interestsC. EXAM: find the exam answer that embodies the standard as close as possible; they can’t tell you to decide if something is or is not nuisance

Answer 86

1. Vicarious L (******** most common and most tested) 2. Co-Defendants (joint and several L)3. Loss of Consortium

Answer 87

a. employer/employee: employer can be held VL for act of employee when committed within the scope of employmenti. intentional tort in scope of employment = almost always not VLii. BUT, if employer authorized to use force (night club bouncer punches someone for no good reason) = then yes within scope ORiii. job that leads to controversy (repo man) = yes, VLiv. AND, any intentional tort committed in misguided effort to serve the employer – security guard checks every 4th customerb. hiring party/independent contractori. No L, UNLESSii. independent contractor hurts and invitee (painters in route hit someone = NL; but if painting on store and ladder falls = yesc. auto owner/driveri. No L, UNLESSii. you are doing an errand for me (pick up pizzas for me)iii. FL DISTINCTION: you are VL who is using your car with permission (permissive use doctrine; limits damages)d. parents/kidsi. parents not VL for torts of their kids

Answer 88

2. Co-Defendantsa. FL DISTINCTION: FL has abolished joint and several – jury allocates by percent – no D mays more than fair share (P recovers only amount designated from each D)b. MBE joint and several: P sues T, D, and H – recovers all the money from T, even though more than his fair share . . . jury still assigns percentages . . . 10% to T, 30%, 60% . . . P went after T, then T has to go after D and H. i. EXCEPTION: where out of pocket gets all money backo VL case – indemnification . . . ex. I get 100% back; A sends for pizza in B’s car . . . B VL, A gets all money backo retailer held SL from manufacturer; Macy’s gets the money back from Cuisinart

Answer 89

in a vicarious L case where A gets 100% reimbursement from employer . . . ex. I get 100% back; A sends for pizza in B’s car . . . B VL, A gets all money back

Answer 90

a. V married; uninjured spouse gets a separate and new cause of action against all the D; it’s derivative meaning that any defense available in V case can be used against spouseb. 3 things can recover for (categories of damage):i. loss of services: no one to cook, clean, lawn, need to hire someone maybeii. loss of society: loss of companionship; no one to talk to; may need to see a shrink I’m so depressediii. loss of sex: I’m not getting laid

Torts Flashcards

(119 cards)