torts fixed - Sheet1 Flashcards
(151 cards)
1
Q
What are the 7 intentional torts
A
(1) Battery (2) Assault (3) IIED (4) False Imprisonment (5) Trespass to land (6) Trespass to chattel (7) Conversion
2
Q
What are the affirmative defenses to the intentional torts?
A
(1) Consent (applies to all 7) (2) Defense of… (applies to all 7) -self -other -property (3) Necessity (applies to property torts)
3
Q
2 General principals regarding tort law.
A
(1) The P’s hypersensitivity is ignored in determining whether that P has made out an intentional tort claim. (2) There are no incapacity defenses in the world of intentional torts.
4
Q
Elements of Battery:
A
”Intent to Cause a Harmful or Offensive Contact with P”s Person.” (1) Intent (desire or purpose to cause the harmful outcome); (2) Causality (3) Harmful or offensive contact -offensive = unpermitted contact as determined by a person of ordinary sensitivity. (4) With the P’s person. -This includes anything connected to the P
5
Q
Does a battery have to be instantaneous?
A
NO, the harmful contact may occur later in time E.g., poisoning someone’s food that is consumed later
6
Q
What are the elements of assault?
A
”A reasonable apprehension by P of an Immediate harmful or offensive contact with his/her person.” (1) Intent (2) Causation (3) Reasonable apprehension (4) Of an immediate battery
7
Q
What constitutes “apprehension” for purposes of assault?
A
-Apprehension = knowledge NOT fear -Lack of fear does not destroy a COA for assault -”Unloaded Gun Hypo” -If P knows that D is incapable of carrying out the battery, then no assault. -If P does NOT know that D is incapable of carrying out the battery, then there is an assault.
8
Q
Do words alone constitute an “immediate battery” for an assault?
A
NO -Words alone lack immediacy without overt menacing conduct. -Display of a weapon is overt menacing conduct
9
Q
How can words negate immediacy?
A
(1) Conditional words -“if you weren’t my best friend” (2) Words that promise future action -“I’m going to beat the crap out of you tomorrow.”
10
Q
What are the elements of False Imprisonment?
A
”An act of Confining the P to a Bounded area.” (1) Act or omission that restrains P w/o consent (2) Intent to confine (3) Causation NOTE: Holding onto someone”s property that causes that person to remain may be false imprisonment (e.g., luggage).
11
Q
What constitutes an “act of restraint” for false imprisonment?
A
Act, Failure to Act, or Threat -Actual restraint (physical barrier) OR -Threats can be an act of restraint w/o physical barrier OR -Omission, or failure to act can be an act of restraint (wheelchair) AND P”s knowledge of the restraint OR Harm to P
12
Q
What must P show to establish that he was confined in a bound area?
A
(1) P’s movements must be constrained in all areas (360 degrees). (2) There is NO reasonable means of escape that the P can reasonably discovery. -Dangerous, disgusting, humiliating, or hidden means of escape ≠ reasonable means of escape
13
Q
Elements of Intentional Infliction of Emotional Distress.
A
”Outrageous conduct causing severe emotional distress.” (1) Intent (2) Causation (3) D must engage in outrageous conduct (4) P must suffer sever distress
14
Q
What is “outrageous conduct?”
A
-”Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society.” -Not outrageous = mere insults (four letter words) -A Phobia = hypersensitivity and will not be taken into account UNLESS that phobia is known to the D and is exploited (snake on the chair).
15
Q
What factors help establish outrageousness?
A
(1) Repetitive or continuous conduct (2) D is a common carrier (transportation) or an innkeeper (hotel) (3) P is a member of a fragile class of persons and D knows it: (a) Young Children (b) Elderly People (c) Pregnant Women (d) Minority IF action targeted minority
16
Q
Elements of a trespass to land?
A
”A physical invasion of the P”s land.” (1) Intent to enter (2) Physical invasion (3) Land of another
17
Q
How to establish a “physical invasion” onto land for purposes of trespass?
A
- Enter P’s property, intentionally, on foot or in a vehicle - You do not need to know that you entered someone else’s property - Throwing tangible objects onto P’s property counts
18
Q
For a trespass, must the tangible object touch the surface of P”s land?
A
NO, P also owns the: (1) Air above out to a reasonable distance (2) Soil below out to a reasonable distance
19
Q
What are the elements of trespass to chattels and conversions?
A
”Some (tc) / Great (c) interference with P”s personal property interest.” (1) Interference with (2) P’s personal property/chattel
20
Q
What constitutes an “interference” for purposes of trespass to chattel or conversion?
A
(1) Deliberate damage OR (2) Depriving NOTE: A bailee who materially breach the terms of a bailment K may be liable for c or tc, even if she returns the property in tact.
21
Q
How to determine whether a trespass to chattel or a conversion has occurred?
A
The magnitude of interference - Slight interference = trespass to chattel - Significant interference = conversion
22
Q
Why are there different names for trespass to chattel and conversion?
A
Because there are different remedies available. i) Conversion remedy = full value of the item (forced sale) ii) Trespass to chattel remedy = cost of repair
23
Q
What is the defense of “consent?”
A
-An affirmative defense to ALL intentional torts -P must have the requisite capacity to consent -There are 2 types of consent: (a) Express Consent and (b) Implied Consent - To be a valid defense, D must not exceed the scope of the consent.
24
Q
What are the 2 types of consent?
A
(1) Express Consent (words) -However, VOID if given as a result as fraud or duress (2) Implied Consent (a) Custom or Usage (sports; subway) (b) Objective theory (invited over for a drink) -D’s reasonable interpretation of P’s objective conduct -NEVER consider the unexpressed (subjective) thoughts of the P
25
Elements of defense of self, other, or property affirmative defense?
Reactive, Reasonable, and Proportional (1) Response to Immanent Threat -D must establish that he is responding to a threat that is immanent or in progress (2) D must have a reasonable belief that there is a threat -A reasonable mistake about the threat is allowed (3) D must use Proportional Force -Excessive force destroys this privilege -Deadly force is NEVER allowed to protect property
26
What are the two types of necessity defenses?
(1) Public Necessity -Arises when a D invades P’s property in an emergency to protect the community as a whole, or a significant group of people (hero) -This a complete and absolute defense. D will not be liable for ANY damages. (2) Private Necessity -D invades P’s property interest in an emergency to protect an interest of his own (not a hero) -A private necessity D is liable to the P for any actual harm (not liability for nominal or punitive damages)
27
Can a P expel a D from a position of safety if the D is trespassing on P”s property?
NO D cannot be lawfully expelled from a position of safety while the emergency is continuing. “right of sanctuary.”
28
What are the elements of defamation?
(1) Statement (2) Publication (3) Damage (usually)
29
What makes a “statement” defamatory?
(1) The D”s statement must specifically identifies the P -The P must be alive (2) Statement must adversely effect the P”s reputation (3) The statement must purport to be a statement of fact -Statements of opinion may be defamatory if a reasonable person listening to the statement would conclude that it conveys factual information.
30
What is “publication” for purposes of defamation?
Disclosure to at least 1 person. -If no one hears the statement, there is no tort. -The publication can be negligent.
31
What are the 3 types of Defamation?
a) Libel b) Slander Per Se c) Slander (NOT per se)
32
When are damages necessary and not necessary for a defamation claim?
(1) Damages Necessary (a) Slander (NOT per se) -Must prove actual economic loss; special damages -Mental distress or social consequences are not enough. (2) Damages NOT required: (a) Libel (b) Slander Per Se Although damages are not needed for some forms of defamation, the P is free to prove them. All it means is that the P will withstand a directed verdict if he does not plead damages.
33
What are the specific categories of slander per se?
ONLY 4 specific categories: (1) Business or profession (2) Crime of moral turpitude -Hiring a prostitute (3) Imputing unchastity onto a married woman (4) Suffers from a loathsome disease (only 2): -Leprosy -STD
34
What are the defense to defamation?
1) Consent 2) Truth 3) Privileges 4) “Special Cases” of Public Concern -Public Figure -Non-Public Figure
35
What are they types of privilege for purposes of defamation?
(1) Absolute Privileges (2) Qualified Privilege
36
What are the types of absolute privilege?
(1) Between spouses (2) Officers of the 3 branches of government in the course of their duties -Judicial branch privilege extends to the lawyers and witnesses’ statements in open court or within court papers.
37
What is a qualified privilege?
”A statement that is reasonably publicized to a recipient that has an interest in the statement.” -Candor is required. Examples: (1) Letters of recommendation including weaknesses (2) Statements to PO (3) Statements to a joint account holder NOTE: -Injecting irrelevancies causes D to lose this privilege. -Spreading rumors causes D to lose this privilege.
38
What are the “Special Cases” of Public Concern in the context of defenses to defamation?
Any case of defamation that concerns matters of public concern is a special case (mayor taking bribes; sports figure taking drugs) Added Burden on P to establish: (1) Falsity (changes the burden) (2) Fault -public figure = reckless or intentional -non-public figure = negligence
39
What are the 4 types of privacy torts?
(1) Appropriation (2) Intrusion upon Seclusion (3) False Light (4) Disclosure of Private Fact
40
What is the privacy tort of appropriation?
(1) D uses P’s name or image for commercial purposes -Exception: Newsworthiness
41
What is the privacy tort of Intrusion upon Seclusion?
(1) An invasion by the D of P’s seclusion in a manner that would be objectionable to the average person. - P must be in a place of privacy to make this claim
42
What is the privacy tort of false light?
(1) Wide spread dissemination by D of a material falsehood about the P that would be objectionable to the average person -A large number of people must be informed -The material falsehood need not be defamatory. -There is no fault or intent requirement (good faith ≠ defense)
43
What is the privacy tort of disclosure of private facts?
(1) Wide spread dissemination of (2) confidential information about the P that would be objectionable to the average person. -Newsworthiness Exception
44
What are the Affirmative Privacy Tort Defenses?
(1) Consent (2) Defamation Privileges - These only apply to False light and Disclosure of Private Fact
45
What are the 2 preliminary questions you must ask when assessing duty for a negligence issue?
(1) To whom do you owe a duty of care? (2) How much care should you exercise?
46
To whom do you owe a duty of care?
(1) To all foreseeable victims. (2) We do not owe a duty to unforeseeable victims -Unforeseeable victims will always lose negligence claims -Unforeseeable victims are those outside the zone of danger -Exception: Rescuers are foreseeable
47
How much care should you exercise?
The reasonably prudent person acting under similar circumstances. -Objective standard: Do not make any allowances; do not change the reasonable person to fit the D -Exceptions: (1) If D had superior knowledge, skill, or fact then the standard is raised to incorporate the superior knowledge or skill (2) Take into account relevant physical characteristics (Left handed; Short; Blind; Paraplegic)
48
What are the 3 categories of people that have a modified “reasonable person standard?”
(1) Children (2) Professionals (3) Possessors of land
49
What duty of care does a child owe?
(1) Under the age of 4 = NO DUTY OWED (2) 4-18 = similar age, experience, and intelligence acting under similar circumstances (completely subjective standard) EXCEPTION: If a child (4-18) is engaged in an “adult activity” (operating a vehicle) use the objective reasonably prudent person standard, NOT the child standard of care. NOTE: It does not matter that children routinely engage in the adult activity, the adult standard will still apply.
50
What duty of care does a professional owe?
A professional owes clients or patients a duty of care of an average member of that profession acting in a similar community (empirical data)
51
How do you determine what “member of the community” to use for the professional standard?
(1) Primary care physician: The community that the Dr. practices in -small town Dr. compared to small town Dr. (2) Specialists: community of other specialists -brain surgeons to brain surgeons
52
What are the two preliminary question that must be asked when determine the standard of care a possessor of land owes an entrant?
(1) How the entrant was injured (2) What type of entrant was it
53
What are the two categories of ways an entrant can be injured?
(1) By Activities -Injured by an activity that is being conducted on the land by the owner or agent; OR (2) By a Condition -Encountering a dangerous condition
54
What are the 6 classes of entrants that can enter a possessor”s land?
(i) Undiscovered Trespassers (ii) Discovered or Anticipated Trespassers (iii) Child Trespassers (iv) Licensees (v) Invitees (vi) Firefighters and Police Officers
55
What level of duty does a possessor of real estate owed an Undiscovered Trespasser?
1. Activities: No duty of care owed 2. Conditions: No duty of care owed \*They always lose negligence claims because they are unforeseeable.
56
What level of duty does a possessor of real estate owed an Anticipated Trespasser?
1. Activities: Reasonable Person Standard 2. Conditions: Possessor owes a known trespasser a duty to protect from “all known manmade deathtraps on the land:” a. Artificial; and b. Highly dangerous; and c. Concealed from the trespasser; and d. Possessor knew about the condition. \*To determine if it is an anticipated trespassers, look for a repeated pattern of trespassing.
57
What level of duty does a possessor of real estate owed a Licensee?
1. Activities: Reasonable person standard 2. Conditions: Possessor owes a licensee a duty to protect from “all known traps on the land:” a. Concealed from the licensee; and b. Possessor knew about the condition. \*Licensees enter land with permission, but do not confer any economic benefit on the possessor.
58
What level of duty does a possessor of real estate owe an Invitee?
(1) Activities: -Reasonable Person Standard (2) Conditions: Possessor owes an invitee a duty to protect from “all known or reasonably discoverable traps on the land” -Concealed from the invitee; AND -Possessor knew about the condition OR Could have discovered it through a reasonable inspection. \*Invitees enter the land to confer an economic benefit on the possessor OR because the land is held open to the public at large NOTE: An invitee can lose this status if he wanders into an area not reasonably believed to be within the scope of the invitation (exceeds the scope of the invitation).
59
Can a firefighter or police officer who, as part of his official duties, enters a land possessor”s land recover for injuries they sustained on that person”s land?
NO. 1. They may never recover for the inherent risks of their job. -Based on the notion of assumption of risk and they are paid to assume that risk
60
What level of duty does a possessor of real estate owed a Child Trespasser?
1. Entitled to reasonably prudent person care with regard to artificial conditions on the land 2. Land owner must ask: a. How foreseeable would it be that children would trespass? b. Are there any attractive nuisances on my property? c. Can the child appreciate the danger?
61
How can a land owner prevent potential liability?
1. Fixing the condition 2. Adequately warning
62
What are the elements of a Negligence Per Se (Statutory Duties of Care) claim?
Class of Person & Class of Harm (a) P was a member of that class of persons that the statute seeks to protect (b) The harm was the type of harm the statute intended to prevent
63
When does Negligence Per Se not apply even though the P is the class of persons intended to be protected and the harm was the class of harm intended to be prevented?
(a) If compliance was more dangerous than violation. -Swerving to avoid a child (b) If compliance was impossible -Running a red light due to heart attack
64
When does a person have a duty to act affirmatively?
(1) Preexisting legal relationship (2) D created the peril (reasonable person standard) (3\*) Gratuitous Rescuer -If you try to rescue and you screw it up, you will be liable.
65
What are the elements of a “Zone of Danger” NIED claim?
(1) D was negligent under one of the other theories (2) P was in the zone of physical danger (near miss) (3) Subsequent physical manifestations of the distress -Ex: Heart attack; Miscarriage NOTE: This is the minority rule, don”t use it unless told.
66
What are the elements of a “Bystander” NIED claim?
(1) P was a contemporaneous witness to a negligent injury to a close family member (2) P suffers as a result of witnessing the event -Ex: Heart attack; Miscarriage NOTE: This is the majority rule, use it as a default.
67
What must P show to establish a breach of a duty?
(1) Identify specific wrongful conduct by D; AND (2) Explain why it is wrongful
68
When is P not required to establish a breach for a negligence claim?
Res Ipsa Loquitur i) The accident that occurred is one normally associated with negligence; & ii) Normally due to the negligence of someone in the D’s position. -INFERENCE of negligence
69
What is “actual causation?”
But For P must establish a linkage between the breach and the damage suffered.
70
When is the P not required to plead actual causation?
Merged Causes (2 fires) Unascertainable Cause (Summers v. Tice)
71
What test is used in lieu of the “but for” test when there are “merged causes?”
The “substantial factor” test: -whether each breach was theoretical capable of causing the full harm itself.
72
What test is used in lieu of the “but for” test when there is an “unascertainable cause?”
Shift the burden to the Ds to establish that they did NOT cause the harm. -One harm, 2 negligent D’s, no idea who caused the harm
73
What are the 2 situations that a Proximate Cause issue will arise?
(1) Direct Cause Case -D commits the breach and P immediately is harmed -The injuries are almost always foreseeable -Unless the results are freakish (2) Indirect Cause Case: -D commits the breach and P is later is harmed -There are events that occur between the breach and the harm -More difficult to establish foreseeability
74
What is the one word the best describes proximate cause?
Foreseeability
75
What are the 4 well settled intervening events that a negligent D will be liable for?
“Well Settled Quartet” (i) Intervening medical malpractice (Dr. is liable as well) (ii) Intervening negligence rescue (rescuer is liable as well) (iii) Protection or reactionary forces (stampeding) (iv) Subsequent disease or accident (gangrene / crutch accident)
76
What does “the eggshell P” mean?
Once P has established all the other elements of a prima fascia case for negligence (or any tort), P gets ALL damages, no matter how great in scope. -“You take your P as you find your P”
77
What are the 3 Affirmative Defenses to Negligence Claims?
1) Contributory Negligence (minority) 2) Assumption of Risk (minority) 3) Comparative Negligence (majority)
78
What are the 2 types of Comparative Negligence?
(1) Pure (default rule) -P”s award will be reduced by whatever % P was negligent -P always recovers something, eve, if 1%. (2) Modified -P”s fault cannot exceed 50% -If P”s fault is less than 50%, P”s award will be reduced by whatever % P was negligent
79
When will strict liability be applied?
(1) Animals (2) Products (3) Abnormally dangerous activities
80
What are the difference between wild and domesticated animals for purposes of strict liability?
(1) Wild Animals (tiger) -Strict liability always attaches. (2) Domesticated Animals (dogs) -Not strictly liable -UNLESS (a) D knew of the dogs dangerous propensities AND (b) D kept the dog
81
How do you determine if an activity is an abnormally dangerous activity?
Can”t be safe & Uncommon (1) The activity is one which creates a foreseeable risk of serious risk even when reasonable care is exercised. AND (2) The activity is not a matter of common usage in the community (it is out of context; the D is the only one doing this)
82
What activities are abnormally dangerous as a matter of precedent?
i) Blasting or use of explosives ii) Dangerous or uncommon chemicals or biological material iii) Nuclear energy or radiation NOT: -Fireworks -Flying a plane
83
What is ALWASY a red herring when dealing with a strict liability issue?
Facts that speak to D”s “reasonable care.”
84
What are the 4 elements of a strict products liability claim?
Merchant, Defect, Unaltered, & Foreseeable Use (1) D was a merchant of that product (2) Product was defective (3) Product was not altered (4) P”s use of the product was foreseeable + Causation and Damages
85
Who is a “merchant” for purposes of strict products liability?
(1) Merchant = Someone who routinely deal with goods of this type. -Bestbuy selling a TV (a) Commercial lessor = merchant -Rental car company (b) Casual seller ≠ merchant -Yard sale (c) Service providers ≠ merchants of goods incidental to the service -Bar stool collapses, bar is not strictly liable NOTE: Strict Liability continues throughout the distribution chain -manufacturer, whole seller, retailer
86
What are the ways a product may be defective?
(a) Manufacturing defect (1 product is bad) (b) Design defect (all products are bad) (c) Defective information or warnings (warning is bad)
87
When does a product have a “manufacturing defect?”
It departs from its intended design in a way that makes it more dangerous than consumers would expect.
88
What must P prove to establish that a product has a design defect?
P must propose a hypothetical alternative design (HAD) that is 1. Safer; 2. Economical; and 3. Practical
89
How can a P establish that a product has defective information or warnings?
1. The product has RESIDUAL RISK; 2. that CANNOT BE ELIMINATED by a physical redesign; 3. and a consumer would NOT BE AWARE of those RISKS
90
Does placing a warning on a product absolve the manufacturer of strict liability?
NOT if that can be physically altered at a low cost.
91
In a strict products liability case, whose burden is it to establish that the product has been altered?
The D -There is a presumption that the product has not been altered if it has traveled in ordinary channels of distribution.
92
Is a D absolved from strict products liability if the P misused the product?
Only IF the misuse was unforeseeable. -Ask whether it is foreseeable for a consumer to use this product in a manner that P was using the product when he was injured. -Chair used as ladder
93
What are the affirmative defenses to strict liability?
1) Contributory Negligence (minority) 2) Assumption of Risk (minority) 3) Comparative Negligence (majority)
94
What are the elements of nuisance?
”Unreasonable interference with use and enjoyment of property.” a) Interference with b) P’s ability to use and enjoy his land to c) an unreasonable degree.
95
For a nuisance claim, does the D have to act intentionally?
NO, the interference can be inflicted by an innocent, negligent, reckless or intentional D
96
Should vicarious liability be argued if the D is personally negligent.
YES, BUT, vicarious liability is a doctrine of last resort when direct liability does not work.
97
What are the 4 categories of vicarious liability?
1) EE /ER 2) Independent contractor / Hiring Party 3) Automobile owner / driver 4) Parents / Children (not in the majority of jdx)
98
When is an ER liable for an EE”s negligence?
If the tort was committed in the scope of employment.
99
When is an ER vicariously liable for an EE”s intentional torts?
ONLY when Bouncer, Repo-man, Over Zealous Security Guard (a) The job generates friction (repo man); (b) The ER has authorized the use of force (nightclub bouncer); OR (c) Carried out in a misguided effort to benefit the ER (over zealous store security who apprehends all customers)
100
When is a hiring party vicariously liable for the acts of an independent contractor?
Typically ONLY when the hiring party is a land possessor and an IK harms D”s invitee. -Duty owed to invitees is non-delegable -Performing medical services is non-delegable.
101
When is an automobile owner vicariously liable for the injuries caused by the driver?
ONLY when the driver was a running an errand for the owner.
102
When are parents vicariously liable for the actions of their children?
Never. Unless agency exist. However, the parent”s action is typically negligent in-and-of itself. -Kid finds dad”s gun and shoots someone.
103
How is fault apportioned between co-Ds?
Comparative Contribution based on an apportion of fault.
104
What is indemnification?
It allows a party “to be held harmless.” If an ER was vicariously liable for the actions of it EE, the ER may seek indemnification from the EE for the entire amount of the ER”s loss. Note, EE need not violate a company rule. ER may seek indemnification if its liability is based SOLELY on EE”s negligence. Also, any non-manufacture can seek indemnification from the manufacturer.
105
What will a claim for Loss of Consortium allow a spouse to recover?
Services, Society, Sex a) Loss of services (repairman, maid, etc.) b) Loss of society (loss of friend) c) Loss of sexual intimacy (sex)
106
Who may raise a claim for Loss of Consortium?
The spouse of the injured party. -This cause of action arises out of the same facts that led to the injured spouses injuries.
107
If a product is involved, how do you determine whether to discuss strict product liability or negligence?
(1) Use strict liability if the focal point is the product or warnings concerning the product. (2) Use negligence if it is the manufacture”s actions that are at issue.
108
Will a D, who committed an intentional tort, prevail if he successfully argues that the additional injuries caused by the intentional tort were not reasonably foreseeable?
NO. Unlike in negligence cases, the unforeseeability of additional forces that contribute to a P’s injury in an intentional tort case does not make them superseding forces that break the causal connection between the initial wrongful act and the ultimate injury.
109
Will P withstand a directed verdict motion in a contributory negligence jdx if P is obviously negligent?
YES. Whether P”s conduct is so lacking in due care as to amount to contributory negligence should be left to the jury to decide, not the judge.
110
Will a child-P, whose action is brought by his parents, have his award reduced, or barred, due to his parents” negligence?
NO. A parent”s contributory negligence is not imputed to the child in the action brought on his behalf.
111
What factor is relevant to the the defense of governmental immunity?
Whether the operation, event, or instrumentality that caused the harm produces revenue for the city. -Governmental immunity does not apply if the government is engaged in an activity that is normally conducted by private industry.
112
Does a P have to establish fault if he is suing for strict liability?
NO. The P does not have the burden of establishing who is at fault.
113
Has a P established his prima facie case for strict liability by showing: #(1) D is a merchant of the product; #(2) the product did not perform as it was supposed to; #(3) causation; and #(4) damages?
NO. P must establish either: (a) Manufacturing defect; (b) Design defect; or (c) Defective information or warnings -Merely stating that the product did not perform as it was supposed to is insufficient.
114
Who determines whether an activity is abnormally dangerous, the trier of fact or law?
The trier of law. -The court can decide this issue on a motion for a directed verdict.
115
Is assumption of risk a defense to negligence per se?
NO. Courts refuse to permit an assumption of risk defense in some situations because of public policy considerations. When a statute applies and is enacted to protect a class, members of that class will not be deemed to have assumed any risk.
116
When is negligence a prerequisite to a claim of false light defamation?
When the matter is of public concern AND the P is NOT a public figure.
117
IIED v. NIED #Elements
(1) Extreme and Outrageous Conduct (IIED) Negligence under another standard (NIED) (2) Intent or Recklessness (IIED) Negligence or Carelessness (NIED) (3) Family Member (maj NIED) OR Zone of Danger (min NIED) (4) Sever Emotional Distress (IIED) Physical Manifestation (NIED)
118
When is the element of “physical injury” not necessary for NIED?
(1) False report of a death; OR (2) Mishandling of a corpse
119
What are common “sucker answers” in torts?
(1) Industry standard answers (2) But for answers
120
What is the hierarchy of torts answers?
(1) Intentional Torts (2) Strict Liability (3) Negligence
121
What is the difference between a “frolic” and a “detour?”
Frolic: -Major deviation from business activities -ER or Business Partner is NOT LIABLE for torts that occur during EE or partner”s frolics Detour: -Minor deviation from business activities -ER or Business Partner is LIABLE for torts that occur during EE or partner”s detour
122
Is it necessary that a D gain a profit for the privacy tort of appropriation?
NO D”s mere use of P”s image or likeness, without P”s permission, used to promote D”s business is sufficient.
123
Elements of an attractive nuisance?
Knowledge of Danger, Knowledge of Children, Children don”t Appreciate Risk, Utility Outweighed by Risk (1) Owner knows or should know of a dangerous condition present on his land; (2) Owner knows or should know that young persons frequent the vicinity of the dangerous condition; (3) The condition is dangerous to children because they cannot appreciate the risk; AND (4) The cost of remedying the condition is slight compared to the magnitude of risk. NOTE: The child need not actually be lured onto the property by the nuisance.
124
Is assumption of risk a valid defense to strict liability.
YES.
125
Is D liable for trespass if D causes X to enter P”s land?
YES
126
If a retailer”s failure to reasonably inspect a product causes harm to P, and P sues manufacturer in strict liability, will the manufacturer prevail in an action for indemnity against a retailer?
NO. Indemnity only works up the chain of distribution. Therefore, a retailer can sue a wholesaler or a manufacturer for indemnity, but not visa versa.
127
If a parent knows of his child”s propensity for violence, can that parent be liable for a battery by that child?
YES. Although a parent cannot be held vicariously liable for the intentional torts committed by his child, the parent can still be held liable for negligence.
128
Are defamatory statements made in a radio broadcast slander or libel?
Libel.
129
How do you establish whether a person is a public figure?
(1) he achieves such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts; OR (2) he voluntarily assumes a central role in a particular public controversy
130
If P has established that D is negligent per se, what elements of negligence have been established?
(1) Duty AND (2) Breach -Causation and damages must still be established.
131
Elements of intentional misrepresentation?
(1) a misrepresentation of past or present fact; (2) scienter; (3) an intent to induce P”s reliance; (4) actual reliance (causation); (5) justifiable reliance (reasonable); AND (6) damages
132
When the call of the questions says P filed a “products liability” suit against D, what COA(s) is/are being asserted?
(1) Strict Tort Liability (2) Negligence Possibly (3) Implied Warranties (Merchantability/fitness) (4) Misrepresentation / Breach of Express Warranty
133
May force applied by a mechanical device be used to defend property?
YES -It must be reasonable.
134
May a deadly weapon be used to defend against a simple battery?
NO -Use of a deadly weapon in the commission of a battery elevates the crime to aggravated battery.
135
What level of care does a landowner owe to travelers on highways adjacent to his land?
That of a reasonable landowner. The duty of reasonable care.
136
Can a rescuer who is injured during rescue recover from the person rescued?
YES, IF: The person rescued got into peril due to her own negligence.
137
When a claim for defamation concerns a matter of public concern, are damages ever presumed?
NO. P must show evidence of actual injury regardless of whether P is a public figure.
138
If property is donated, can the donor be held liable for injuries that occur on that property subsequent to the transfer?
YES, if the the injury occurred due to the pre-donation negligence of the donor. E.g., if a philanthropist negligently constructs a park and donates it to a city, he is still liable for any injuries caused by his negligence. However, he is not liable for injuries caused by the city”s negligence (e.g., maintenance, supervision, etc.).
139
If A innocently, but wrongfully, makes a police report against B for larceny, and A subsequently arrested and temporarily imprisoned, is A liable for false imprisonment?
NO Even if before the B was arrested A discovered that B was innocent and A failed to correct his mistake. However, watch for a claim for abuse of process.
140
Intentional Interference w/ a Business Relation##Elements
(1) Expectancy of P OR employment k between 3rd and P. (2) D”s knowledge of the expectancy or relationship (3) Intentional interference that causes breach or loss of expectancy (4) Damages NOTE: If D tries to steel an employee (3rd) from P, there can be an tortious interference even if no contractual relationship existed between ee and er (3rd and P) if er had an expectancy that ee would continue with the business and D knew of and interfered with that expectancy.
141
Are emotional distress damages recoverable without extreme and outrageous conduct?
YES, if there is another tort that caused the injury that they can be “tacked” onto.
142
Does this statement concern a “past or present fact” for purposes of fraud/misrepresentation:##“The state is currently planning to construct a new interchange.”
YES. “Currently planning” is a statement present fact. Conversely, “The interchange is going to be built in the future,” does not contain a statement of present fact.
143
Which, if either, is a wild animal:##-Pigeons#-Honeybees#-Horses#-Rats
Only Rats. Therefore, strict liability does NOT apply.
144
Negligence Outline
(1) Duty -Cardozo zone of danger -Andrews all foreseeable Ps (2) Breach of Duty -Standard of care (3) Causation -But for (actual) -Proximate -Superseding causes (4) Damages -Compensatory (5) Defenses -Comparative/Contributory -Assumption of risk
145
Malicious Prosecution: Elements
(1) Institution of civil proceeding against P (2) Termination favorable to P -Dismissed with prejudice (3) Absence of probable cause of instituting the proceeding (4) Improper Purpose -Any purpose other than justice (5) Damages NOTE: An attorney is not liable for the malice of her client so long as the attorney is acting in her client”s best interest and has a proper purpose.
146
Abuse of Process
(1) Wrongful use of process for an ulterior purpose (2) Some definite act or threat against P to accomplish the ulterior purpose
147
What is the difference between ##(1) Abuse of process#(2) Malicious prosecution
(1) Abuse of process -D uses the legal process as a tool to extort a result other than that for which the process was intended. -The merits of the claim are not relevant. (2) Malicious prosecution -The claim itself is known to be meritless and brought for a purposes other than the pursuit of justice
148
Will damages be awarded to remedy a nuisance that cannot be enjoined because its benefit to the public outweighs the harm to the P?
YES So long as there is a SUBSTANTIAL and UNREASONABLE interference with P”s interest.
149
If other”s are “annoyed” by a nuisance, but P is extremely sensitive to the condition, will P be considered a “hypersensitive” P and therefore lose?
NO The fact that others are “annoyed” by the condition is enough to prevent the “hypersensitive” P argument.
150
What types of trespass require a showing of actual damages?##(1) Intentional#(2) Reckless#(3) Negligent#(4) Strict Liability
(2) Reckless (3) Negligent (4) Strict Liability NOT (1) Intentional
151
Does a recall notice absolve a manufacture of liability?
Not ipso facto. However, if the party injured by the product knew of the recall, there is a good assumption of risk argument.
