Torts flashcards
(285 cards)
1
Q
What does a prima facie case of negligence require?
A
Proof of:
duty, breach of that duty, causation, and damages.
2
Q
In general, duty of care is owed to who?
A
all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.
3
Q
What standard of care is a physician held to?
A
a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.
4
Q
Under strict products liability, who may be liable for any harm caused by the product?
A
the manufacturer, the retailer, or other distributor of a defective product.
5
Q
What must a plaintiff prove under strict liability?
A
1) the product was defective (in manufacture, design, or failure to warn),
2) the defect existed at the time the product left the defendant’s control, and
3) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.
6
Q
What is a manufacturing defect?
A
a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test is whether the product conforms to the defendant’s own specifications.
7
Q
What is the implied warranty of merchantability
A
it warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.
8
Q
Regardless of the theory of liability, who has the burden to prove that the specific defendant caused the plaintiff’s injures?
A
the plaintiff.
9
Q
What are the several theories of liability under which a plaintiff can recover when there are multiple tortfeasors or multiple possible tortfeasors?
A
1) market share liability doctrine: under this doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market. However, one will not succeed If the product is not truly identical.
2) alternative causation doctrine: if the plaintiff’s harm was caused by (1) one of a small number of defendants, (2) each of whose conduct was tortious, and (3) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.
3) concert of action doctrine: if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all defendants will be held jointly and severally liable.
10
Q
What duty does a land possessor owe to known or anticipated trespassers?
A
owes a duty to:
1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers &
2) use reasonable care in activities conducted on the land.
11
Q
In an IIED claim, who generally can recover damages?
A
Generally, only the actual target of the defendant’s conduct can recover damages for IIED…however, a defendant whose extreme and outrageous conduct has harmed a 3rd party may be liable for IIED if:
(1) the plaintiff contemporaneously perceived that conduct; and
(2) the plaintiff was closely related to the 3rd party.
12
Q
What is the effect of a “guest statute” being enacted?
A
While in most jurisdictions, automobile drivers owe a duty of ordinary care to guests (who ride free) and passengers (who pay money for the ride). But a minority of jurisdictions have enacted “guest statutes,” under which an automobile driver’s only duty to guests is to refrain from gross or wanton and willful misconduct.
13
Q
minority vs majority view of negligence per se
A
majority approach is that duty and breach can be conclusively presumed if:
1) the defendant violated a statute or ordinance
2) that statute or ordinance was intended to prevent the type of harm suffered by the plaintiff; and
3) the plaintiff is within a class of persons that the statute or ordinance was intended to protect.
However, under the minority approach, the violation of a statute or ordinance is merely evidence of negligence that creates a rebuttable presumption that the defendant breached a duty of care.
14
Q
What are the requirements for intentional interference with a K?
A
It requires proof that:
(1) a valid K existed between the plaintiff and a third party
(2) the defendant knew of that contractual relationship,
(3) the defendant intentionally and improperly interfered with the K’s performance, and
(4) the interference caused the plaintiff’s pecuniary loss.
14
Q
Modern approach to land possessor duty to land entrants
A
the main rule is that reasonable care is owed to all land entrants regardless of status on land except for flagrant trespassers. Reasonable care is not owed to flagrant trespassers BUT land possessor must: (1) not act in intentional, willful, or wanton (i.e. tortious) manner that causes physical harm and (2) exercise reasonable care to flagrant trespassers in peril.
15
Q
voluntary vs involuntary intoxication standards
A
In negligence cases, a voluntarily intoxicated person is held to the same standard as a reasonably prudent sober person. In contrast, the conduct of an involuntarily intoxicated person will be measured by the standard of a reasonably careful person with the same level of intoxication.
16
Q
In a negligence action, a plaintiff can recover compensatory damages based on what?
A
(1) the plaintiff’s initial physical harm
(2) any subsequent harm traceable to that initial harm, and
(3) steps taken to mitigate the initial harm.
But the plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining damages.
17
Q
Are parents vicariously liable for their child’s torts?
A
Generally not…unless the child was acting as their agent or a state statute imposes liability on the parents for the child’s tortious conduct.
18
Q
When may a public figure recover for IIED based on a defendant’s publication?
A
If the defendant:
(1) acted in an extreme and outrageous manner;
(2) intentionally or recklessly caused the public figure severe emotional distress; &
(3) published a false statement of fact with actual malice.
19
Q
What does trespass to chattels by intentional use or by intermeddling with the plaintiffs chattel require proof of?
A
Actual damages through:
(1) actual harm to the chattel
(2) substantial loss of use of the chattel, or
(3) bodily harm to the plaintiff.
20
Q
When does liability for invasion of privacy based on misappropriation of the right to publicity arise?
A
When a defendant:
(1) used the plaintiff’s name, likeness, or an item closely associated with the defendant without authorization,
(2) obtains a benefit, &
(3) causes the plaintiff an injury.
21
Q
When does liability for intentional misrepresentation arise?
A
When (1) the defendant knowingly or recklessly misrepresents a material fact with the intent to induce the plaintiff’s reliance and (2) the plaintiff reasonably relies on the misrepresentation and suffers pecuniary loss as a result.
22
Q
In contributory negligence jurisdictions, is the plaintiff’s own negligence a defense to strict liability?
A
While it is a complete bar to recovery for a negligence action, it is NO defense to strict liability.
23
Q
Definition of battery
A
1) defendant causes a harmful or offensive contact with the person of another; and
2) acts with the intent to cause that contact or the apprehension of that contact.
A defendant’s contact is intentional if he acts with the purpose of bringing about the contact or engages in an action knowing that the contact is substantially certain to occur to the victim.
24
For a battery claim, must the act result in contact?
Yes...the act must result in contact of a harmful or offensive nature.
25
What do harmful and offensive mean for the purposes of battery?
harmful = causes an injury, pain, or illness.
offensive = a person of ordinary sensibilities would find the contact offensive.
26
Must a victim be conscious of a touching in order for it to be offensive?
Nope.
27
With battery, is the defendant still liable if the victim if hypersensitive and the defendant knows about the victim's hypersensitivity?
Yes, the defendant may still be liable.
28
does the contact for battery need to be direct?
It can be direct but need not be.
29
What does "with the person of another" include?
anything connected to the plaintiff's person.
30
With battery, must the offense be intended?
No... what has to be intended is the contact, not the offense.
31
Does the doctrine of transferred intent apply to battery? What is it?
Yes it does apply to battery.
When the intent to commit one tort satisfies the required intent for a different tort...this can apply 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; or
3) a different intentional tort against a different person.
32
Is actual harm required for damages for battery?
Nope! the plaintiff can recover nominal damages. However, the plaintiff can also recover damages from physical harm flowing from the battery.
33
What is the "eggshell plaintiff" rule?
A defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be.
34
Are punitive damages ever allowed for battery?
many states allow it if the defendant acted:
1) outrageously; or
2) with malice
35
What is the consent defense to battery?
there is no battery if there is express or implied consent.
36
Definition of assault
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.
37
What are the requirements regarding a plaintiff's apprehension for assault?
1) must be reasonable and
2) plaintiff must be aware of the defendant's action (different from battery where consciousness was not required)
38
What are the requirements for the imminent element of assault?
Must be without significant delay....threats of future harm or hypothetical harm are NOT sufficient.
39
Do mere words constitute assault?
Generally, no...but words can suffice in certain circumstances. If the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.
40
What must the defendant have intended in an assault?
Either an apprehension of imminent harmful or offensive contact or the contact itself.
41
Is proof of actual damages required for assault?
Nope...the plaintiff can recover nominal damages. The plaintiff can also recover damages from physical harm flowing from the assault. In appropriate cases, punitive damages may be available.
42
Definition of IIED
defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress.
43
What is the intent requirement for IIED
The defendant must:
(1) intend to cause severe emotional distress; or
(2) act with recklessness as to the risk of causing severe emotional distress.
44
What is extreme and outrageous conduct for the purposes of IIED? When are courts more likely to find conduct or language to be extreme and outrageous?
conduct that exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. Courts are more likely to find conduct or language to be extreme and outrageous 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 (such as young children or the elderly).
45
What are the constitutional limitations regarding IIED for public figures or private plaintiffs regarding speech in the context of a matter of public concern?
Public officials and public figures must show that the words contact a false statement of fact that was made with actual malice. Actual malice means with knowledge that the statement was false or with reckless disregard of its potential falsity. The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct is speech in the context of a matter of public concern.
46
What is a plaintiff directs extreme and outrageous conduct toward one party and a different party experiences severe emotional distress because of that conduct?
the doctrine of transferred intent may apply but only in certain circumstances:
1) related bystanders: an immediate family member of the victim who is present at the time of the conduct and contemporaneously perceives the conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress.
2) Defendant's purpose: if the defendant's purpose in harming an individual is to cause severe emotional distress to a third party, the third party can recover for IIED without showing that he was a close family member of the harmed individual or that he contemporaneously perceived the conduct.
47
for IIED what damages must the plaintiff prove?
Must prove severe emotional distress beyond what a reasonable person should endure. Often, the outrageous nature of the conduct is evidence of the plaintiff's distress. In regards to hypersensitivity, if the plaintiff experiences an unreasonable level of emotional distress, then the defendant is only liable if they knew of the plaintiff's hypersensitivity. Physical injury is NOT required.
48
What are the 3 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.
49
For false imprisonment, what does the "confined within bounded area" requirement mean?
The area can be large and the area need not be stationary.
50
What are typical methods of confinement for false imprisonment?
use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape (omission). It may be false imprisonment when the defendant refused to perform a duty to help the victim escape
51
What is the "merchant's privilege" to false imprisonment?
A merchant can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter.
52
Does time of confinement matter for false imprisonment?
No, time is immaterial to the tort.
53
What is the intent requirement for false imprisonment?
the defendant must act:
1) with the purpose of confining the plaintiff; or
2) knowing that the plaintiff's confinement is substantially certain to result.
54
What about confinement due to a defendant's negligence?
The defendant will not be liable under the intentional tort of false imprisonment.
55
Does transferred intent apply to false imprisonment?
Yes
56
What damages can a plaintiff recover for false imprisonment?
nominal and actual damages.
57
May a defendant's conduct exceed the scope of consent? Can there be consent by mistake? Consent by fraud?
the defendant's conduct may not exceed the scope of the consent.
Consent by mistake - a valid defense unless the defendant caused the mistake or knew of it and took advantage of it.
Consent by fraud - invalid if it goes to an essential matter. If fraud only goes to a collateral matter, consent is still a valid defense.
58
Is presumed/implied consent a defense to intentional torts?
If the plaintiff is silent (or otherwise non responsive) but in context, their silence and continued participation can reasonably be construed as consent then that is a defense.
59
Examples of implied consent
1) emergencies: it is fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent.
2) injuries arising from athletic events: consent within the scope of the sport....A defendant could be liable if the conduct is reckless.
3) mutual consent to combat.
60
May lack of capacity undermine the validity of consent?
Yes it can in cases of youth, incompetency or intoxication.
61
Self defense defense to intentional torts
1) use of reasonable force - force that is proportionate to defend against an offensive contact or bodily harm (i.e., not excessive)
2) duty to retreat - traditionally, most courts required retreat before one could use deadly force. Most jurisdictions do not require retreat before using reasonable, proportionate force (these are called "stand your ground" laws)
3) Initial aggressor - not permitted to claim self-defense unless the other party has responded to non deadly force with deadly force.
4) injuries to bystanders - a person acting in self-defense is not liable for injury to bystanders as long as the injury was accidental and the actor was not negligent toward the bystander.
62
May one use reasonable force in defense of others?
Yes, if that person would be entitled to use self-defense.
63
Use of force in defense of property
May use reasonable force if the person reasonably believes it is necessary to prevent tortious harm to the property.
CANNOT use deadly force in the defense of property.
64
Use of force to recapture chattels
reasonable force may be used to reclaim personal property that has been wrongfully take, but ONLY IF you first request its return, unless that would be FUTILE. If the original taking was lawful (like a bailment) then only peaceful means may be used.
65
Rules on force to regain possession of land
Common law - reasonable force permitted
Modern rule - use of force no longer permitted; only legal process.
66
Can parents use reasonable force as necessary to discipline children?
Yes
67
Privilege of arrest for private citizens
private citizens are permitted to use reasonable force to make an arrest in the case of a felony IF:
- the felony has actually been committed; and
- the arresting party has reasonable grounds to suspect that the person being arrested has committed the felony.
Under the third restatement: it is not a defense to make a reasonable mistake as to the identity of the felon and it is not a defense to make a mistake as to whether the felony was actually committed.
68
Trespass to chattels definition
an intentional interference with the plaintiff's right to possess personal property by:
1) dispossessing the plaintiff of the chattel
2) using or intermeddling with the plaintiff's chattel; or
3) damaging the chattel
69
Privilege of arrest for police
Police:
1) must reasonably believe that a felony has been committed and that the person arrested committed it.
2) an officer who makes a mistake as to whether a felony has been committed is not subject to tort liability.
70
What intent is required for trespass to chattels?
Only the intent to do the interfering act is necessary; need not intend to interfere. Mistake about the legality of the action is NOT a defense.
71
What are the damages for trespass to chattels
In cases of dispossession or damage - plaintiff may recover actual damages, damages resulting from the loss of use, nominal damages, or the cost of repair.
In cases of intermeddling - may ONLY recover actual damages.
72
Definition of conversion
Intentionally committing an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.
73
Intent required for conversion
Defendant must only intend to commit the act that interferes. Mistake of law or fact is NOT a defense.
74
What can a plaintiff recover for conversion?
the full value of the chattel at the time of conversion.
75
What factors do courts consider in determining whether something is trespass to chattels or conversion?
1) the duration and extent of the interference
2) defendant's intent to assert a right inconsistent with the rightful possessor
3) defendant's good faith
4) expense or inconvenience to the plaintiff; and
5) extent of harm
The more extreme the interference, the more likely the court will find conversion rather than trespass to chattels.
76
What is a trespass to land?
When the defendant intentionally causes a physical invasion of someone's land. The defendant need only have the intent to enter the land or cause the physical invasion. Intent to commit a wrongful trespass is NOT required. Mistake of fact is not a defense.
77
Does physical invasion (for the purposes of trespass to land) include causing objects to invade the land?
Yes
78
Trespass v nuisance
trespass always involves an actual physical invasion or intrusion upon the land whereas nuisance may or may not involve a physical invasion or intrusion.
79
Who is the rightful plaintiff of a trespass to land action?
Anyone in possession can bring an action, not just the owner.
80
Is proof of actual damages required for trespass to land?
Nope
81
Necessity as a defense to trespass
Generally available to a person who enters onto someone else's land or interferes with that individual's personal property to prevent an injury or other severe harm.
Private necessity (partial or qualified privilege) = the defendant is not liable for nominal damages. The defendant is liable for actual damages they caused. the landowner may not use force to exclude the person.
Public necessity: private property is intruded upon or destroyed when necessary to protect a large number of people from a public calamity. People are not liable for damages to the property.
82
Definition of a private nuisance
An activity that substantially and unreasonably interferes with another's use and enjoyment of land. Courts are vague as to what constitutes an unreasonable interference. It must be annoying to an ordinary, reasonable person. Someone hypersensitive may not have a cause of action for nuisance. Someone who is not actually bothered by an interference may still have a cause of action for nuisance if the interference would bother an ordinary, reasonable person. Courts will also balance the interference with the utility of the nuisance.
83
What have courts refused to find as a nuisance
the blocking of sunlight or the obstruction of a view. Exception for a spite fence or spite wall: if the person puts up a fence or wall with no other purpose except to block a neighbor's view or sunlight, the courts will sometimes find that to be a nuisance.
84
What are defenses to private nuisances?
1) compliance with state or local administrative regulations: this is evidence as to whether the activity is reasonable but NOT a complete defense.
2) "coming to the nuisance": courts are hesitant to find a nuisance if you moved somewhere knowing about that conduct. It is also not a complete defense but one factor considered by the court.
85
What is a public nuisance?
an unreasonable interference with a right common to the public as a whole. A public official can bring an action on behalf of the public to abate the nuisance.
A private individual generally cannot bring a public nuisance claim unless the plaintiff suffered special harm that is different from the general public.
86
Elements of a negligence claim
1) duty - an obligation toward another party
2) breach - the failure to meet that obligation
3) causation (actual cause and legal cause)
4) damages - the loss suffered
87
What is the standard in most cases for the standard of care in negligence?
reasonable care...there are some exceptional standards, such as utmost care for common carriers.
88
Who is a duty of care generally owed to?
A duty of care is 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 the failure to act appears to be unreasonable. Most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty.
89
What is the majority view (Cardozo approach) versus the Minority view (Andrews approach) to the scope of the duty?
Majority: considers whether the plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct.
Minority: any time conduct could harm someone, there is a duty to everyone. Whether this particular plaintiff was foreseeable is a proximate cause issue.
90
Is a person who comes to the aid of another a foreseeable victim of the original negligent conduct?
Yes
91
Are crime victims foreseeable plaintiffs?
could be considered foreseeable plaintiffs in certain circumstances. For example, if a train negligently takes a passenger past his stop and drops him in a high crime area, the railroad may be liable in tort if that passenger becomes a victim of a crime.
92
What are the exceptions to the general rule that there is no affirmative duty to act to help others?
1) assumption of duty: voluntary undertaking....a person who voluntarily aids or rescues another has a duty of reasonable care in the performance of that aid or rescue.
2) placing another in danger
3) by authority: a person with the ability and actual authority to control another has a duty to exercise reasonable control.
4) by relationship: when a defendant has a special relationship with the plaintiff (common carrier-passenger, innkeeper-guest).... This affirmative duty is not a superman duty. It is a duty of reasonable care to aid or assist those persons and prevent reasonably foreseeable injuries.
93
What is the general negligence standard of care
reasonably prudent person under the circumstances - generally an objective standard.
94
what is the standard of care for those with mental and emotional characteristics?
Objective standard - defendants with specific mental or emotional conditions are subject to the same objective standard as everyone else.
95
What is the standard of care for those with physical characteristics?
Modified standard - particular physical characteristics are taken into account; defendant is compared with a reasonably prudent person with like characteristics (ex: blind defendant will be evaluated in comparison with a reasonably prudent person who is blind.
96
What is the standard of care for someone who is intoxicated?
Objective standard - held to the same standard of care as sober people UNLESS the intoxication was involuntary.
97
What standard of care are children held to?
Modified standard: reasonable child of similar age, intelligence, and experience.
Exception for if the child is engaged in a high-risk adult activity (driving a car)...in that case they are held to the objective standard for adults.
98
What is the traditional rule vs majority/many courts today rules for standard of care for common carriers and innkeepers?
Traditional rule: utmost care - highest duty of care consistent with the practical operation of the business.
Many courts today: liable only for ordinary negligence (not a higher standard)
Majority of courts continue to hold common carriers to the higher standard of care, but now hold innkeepers to the ordinary negligence standard.
99
Standard of care rules related to automobile drivers that applies to guests and friends in a car.
Drivers were traditionally liable only for grossly negligent, wanton, or willful misconduct, however, most jurisdictions now apply a general duty of reasonable care.
100
Common law rule for standard of care for bailments
Bailor must warn a gratuitous bailee of known dangerous conditions.
If the bailor receives the sole benefit, then the bailee has a lesser duty.
If the bailee receives a benefit, then he has a higher duty of care; even slight negligence can result in liability.
101
What is the standard of care in emergency situations?
is that of a reasonable person under the same circumstances.
102
Traditional approach to the standard of care owed by landowners (tripartite structure)
The standard of care depends on the status of the entrant.
Standard owed to invitees: duty of reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee. this is a non-delegable duty and cannot be avoided by assigning the property to an independent contract.
Standard owed to licensees: duty to either make the property reasonably sale or warn licensees of hidden dangers. No duty to inspect for dangers and must exercise reasonable care in conducting activities on the land.
Standard owed to trespassers:
no duty owed to (undiscovered) trespassers. However there is a duty to discovered or anticipated trespassers to warn or protect from hidden dangers.
There is also an exception to refrain from willful, wanton, intentional, or reckless misconduct.
103
Who is an invitee?
someone who comes onto the land for a material or economic purpose.
Public invitee = the land is held open to the public
Business visitor = for a purpose connected to business dealings with the possessor of the land.
104
Who is a licensee?
someone who enters the land with express or implied permission. (example: social guests or allowing neighborhood children to walk across the property on the way to school)
105
Who is a trespasser?
someone on the land without consent or privilege.
106
What is the attractive nuisance doctrine?
landowner may be liable for injuries to children to trespassing on the land if:
(1) an artificial condition exists in the place where the owner knows or has reason to know that children are likely to trespass;
(2) the land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm
(3) the children, because of their age, do not discover or cannot appreciate the danger;
(4) the utility of maintaining the condition is slight compared to the risk of injury; and
(5) the land possessor fails to exercise reasonable care.
107
What is the California way or approach to landowner liability?
Some states use a reasonable care standard under all circumstances for all entrants. The circumstances include the reasons the person is on the property.
Under the third restatement, reasonable care under the circumstances, except "flagrant trespassers." the only duty to flagrant trespassers is to not act in an intentional, willful, or wanton manner to cause physical harm.
108
What are the duties owed by a landlord to the tenant? What duties does the tenant owe?
landlord must:
1) maintain safe common areas:
2) warn of hidden dangers (especially for premises that are leased for public use); and
3) repair hazardous conditions.
As an occupier of the land, the tenant continues to be liable for injuries arising from conditions within the tenant's control.
109
Definition of breach of duty (generally)
A violation of the standard of care
109
What is the traditional approach to breach of duty vs cost-benefit analysis
Traditional approach: reasonable person standard. Focuses on a common-sense approach of what the reasonably prudent person would do under the circumstances.
Cost-benefit analysis: hand formula (B
110
What evidence of custom within an industry or profession dispositive?
It is admissible evidence but not dispositive.
For professionals such as lawyers, doctors, accountants, and electricians...custom is admissible AND dispositive.
111
What are the breach of duty rules for physicians (what standard are they held to?)
Traditional rule: physician in the same or similar locality
Modern trend = national standard.
112
What is the rule on informed consent?
Patients must give informed consent:
Doctors must explain risk of medical procedures.
Doctors are not required to inform the patient if:
- the risks are commonly known;
- the patient is unconscious;
- the patient waives/refuses the information;
- the patient is incompetent; or
- the patient would be harmed by disclosure (it would cause a heart attack)
113
What is negligence per se?
When a law or statute establishes a particular standard of care, violation of the law constitutes a breach; constitute negligence per se.
The elements are:
1) a criminal or regulatory statute imposes a particular duty for the protection or benefit of others;
2) defendant violated the statute;
3) plaintiff must be in the class of people intended to be protected by the statute;
4) the accident must be the type of harm that the statute was intended to protect against; and
5) the harm was caused by a violation of the statute.
If there is a violation by plaintiff then that counts as comparative or contributory negligence.
114
Does compliance with a statute mean reasonable care?
Generally not...does not mean the person was NOT negligent.
115
What is the defense to negligence per se
- Defendant may show that complying with the statute would be even more dangerous than violating the statute.
- compliance was impossible or an emergency justified violation of the statute.
- incapacity (physical disability)
- exercised reasonable care in trying to comply
- vagueness.
116
Under the risk utility test...when is a product defectively designed?
If:
(1) the design creates a foreseeable risk of harm and
(2) that risk could have been mitigated by a reasonable alternative design (e.g., a safer design available at reasonable cost)
117
For a claim of trespass to hand, must a defendant intentionally enter or cause something to enter another land?
Yes....they must intentionally do so.
118
Is an owner of an animal (other than a dog or cat) that intrudes upon another's land strictly liable for any reasonably foreseeable damage caused by that intrusion?
Yes...but that liability does not extend to the owner of land on which a trespassing animal was kept unless the landowner had a right to possess the animal.
119
Can you recover under a negligence theory for purely economic loss?
Nope
120
Under an intentional interference with a contract claim, does a plaintiff's pecuniary loss need to be substantial to prevail on the claim?
Nope... a showing of any pecuniary loss is sufficient.
121
Can a plaintiff still prevail on a claim of negligent misrepresentation if it used the erroneous information for a purpose other than the one for which the information was provided?
Nope...they cannot prevail if that is the case.
122
Is circumstantial evidence of negligence sufficient evidence of negligence in some cases?
Yes! This is the res ipsa loquitur doctrine
123
What are the traditional elements of res ipsa loquitur
1) the accident was of the kind 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 on the part of the plaintiff.
124
What is the modern trend of res ipsa?
third restatement applies the elements generously and looks at whether the accident is a type of accident that ordinarily happens as a result of negligence of a class of actors and whether the defendant is a member of that class.
125
In a small number of jurisdictions, what happens in cases in which medical personnel acted negligently to harm a patient?
Those jurisdictions will shift the burden by holding all defendants jointly and severally liable unless they can exonerate themselves.
126
In regards to products liability, courts ignore what element when it is clear that the defect originated upstream of the package's wrapping?
The exclusivity requirement
127
How do comparative fault jurisdictions treat the third element of res ipsa (that the harm was not caused by any action of the plaintiff?
They loosely apply the third element.
128
What is the procedural effect of res ipsa in most jurisdictions?
Creates a permissible inference that allows the case to go to the jury. Jury may infer negligence, but it need not.
129
What is the "but for" causation test?
Plaintiff must show that the injury would not have occurred "but for" the defendant's negligence. This test is used to determine actual causation.
130
What are situations in which the "but for" test is problematic
- Multiple tortfeasors and it cannot be said that any of the defendants' tortious conduct necessarily was required to produce the harm.
- multiple possible causes and the plaintiff cannot prove which of the various possible causes actually caused the harm; or
- loss of change where the patient is misdiagnosed because of defendant's negligence but cannot show that the misdiagnosis actually caused the harm.
131
What is the substantial factor test and when is it used?
Used when there are conceptual problems with causation due to multiple causes. The test is whether the defendant's tortious conduct was a "substantial factor" in causing the harm?
132
What is alternative causation?
When the plaintiff's harm was caused by only one of few defendants (usually two) and each was negligent, and it cannot be determined which one caused the harm. Courts will shift the burden of proof to the defendants - will impose joint and several liability on both unless one can show he did not cause the harm.
133
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.
134
What is loss of chance recovery? (medical misdiagnosis)
Under traditional but-for analysis, a patient with less than a 50% chance of survival could not recover for negligent misdiagnosis because they were likely to die anyway; the doctor's negligence was not a "but for" cause of the patient's death.
Under the loss of chance doctrine - if a physician negligently reduces the plaintiff's chance of survival, then the plaintiff can recover for the lost chance of recovery. Plaintiffs cannot recovery full damages; but can recover the portion that represents their lost chance of survival.
135
What is the scope of liability (proximate cause)
A person is liable for the kinds of risk that made her conduct negligent. The issue is whether the injury that occurred was within the scope of the defendant's breach.
136
When asking whether a particular consequence of negligence is too remote (no proximate causation) ask the following question:
Is this what made the conduct negligent to begin with. Majority rule is that there is no liability for an unforeseeable type of harm.
137
Intervening vs superseding causes
Courts used to distinguish between intervening causes which do not break the chain of causation, and superseding causes which do. Some courts still make this distinction. The real issue is whether the injury is within the scope of what made the conduct negligent in the first place.
138
What is the extent of damages for negligence?
the defendant is liable for the full extent of the plaintiff's injuries, even if the extent is unusual or unforeseeable (eggshell plaintiff rule). While the type of damages must be foreseeable, the extent need not be.
139
What are actual (compensatory) damages for negligence?
The purpose is to make the plaintiff whole again. They can include costs of physical injuries and also emotional damages (parasitic damages).
140
Do plaintiffs in negligence actions have a duty to mitigate damages?
Plaintiff must take reasonable steps to mitigate damages. This can be considered a duty but it's more of a limitation on recovery.
141
What are the categories of compensatory damages in personal injury cases?
1) medical expenses (both past and future)
2) lost income and reduced earning capacity
3) pain and suffering, both past and future.
142
What damages may one recover for property damage
generally, the plaintiff may recover the difference in market value of the property before and after the injury. May allow cost of repair or replacement value as an alternative measure of damages.
143
Collateral-source rule (traditional vs modern trend)
traditional rule = benefits or payments to the plaintiff from outside sources are not credited against the liability of the tortfeasor. Evidence of such payments is not admissible at trial.
Modern trend = many states have passed statutes that eliminate or substantially modify the collateral source rule to avoid double recovery.
144
Punitive damages for negligence
The purpose is to punish and deter future conduct. May be available if the defendant acted willfully, wantonly, recklessly, or with malice, or if an inherently malicious tort is involved. Availability may be limited by statute. The US Supreme Court has held that as a matter of due process punitive damages must be within a single-digit ratio of any compensatory damages.
145
Negligent Infliction of Emotional Distress (common law v now)
At common law, plaintiffs could not recover for NIED absent a physical injury. Now, plaintiffs can recovery for NIED in specific circumstances.
146
Zone of Danger NIED
a plaintiff can recovery for NIED if:
1) the plaintiff was within the "zone of danger" of the threatened physical impact; and
2) the threat of physical impact caused emotional distress.
147
Bystander recovery for NIED
a bystander can recover for NIED if the bystander:
1) is closely related to the person injured by the defendant;
2) was present at the scene of the injury; and
3) personally observe the injury
These are proximity requirements - relational, geographic, and temporal.
148
Special relationship NIED
Can be liable for negligent mishandling of a loved ones corpse or negligent misdiagnosis.
149
For NIED must there be a physical manifestation of distress?
Most jurisdictions require this (ex: nausea, insomnia, or miscarriage)
150
Can a plaintiff recover pure economic loss in negligence?
No, a plaintiff who only suffers economic loss without any related personal injury or property damage cannot recover in negligence. If the plaintiff can prove personal injury or property damages, then the plaintiff can recover those damages and also economic damages.
151
What is loss of consortium?
Allows recovery for loss arising from injury to a family member. Family members (typically a spouse) can claim loss of consortium or companionship.
152
What is a survival action?
It is brought by a representative of the decedent's estate on behalf of the defendant for claims that the decedent would have had at the time of the decedent's death. Claims include damages resulting from personal injury or property damage.
153
What is a wrongful death claim?
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.
154
What is a wrongful life claim?
A claim by a child for the defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect.
A few states permit a "wrongful life" action, but they limit the child's recovery to special damages attributable to the disability.
155
What is a wrongful birth claim?
A claim by parents for the defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect. Many states do permit recovery for the medical expenses of labor as well as for pain and suffering. In the case of a child with a disability, may be able to recover damages for additional medical expenses of caring for that child, and, in some states, may recover for emotional distress as well.
156
What is vicarious liability?
when one person is held liable for another's person negligence.
157
Joint and several liability with vicarious liability
The responsible party can still be held liable for his negligence, but the employer is also liable. Sometimes the individual employee cannot pay or cannot be identified; the employer would still be liable under joint and several liability.
158
Can a party held vicariously liable seek indemnification from the party who was directly responsible?
Yes
159
What is respondent superior?
Doctrine where an employer is held vicariously liable for the negligence of an employee, if it occurred within the scope of employment.
160
What is the distinction between an employer's own negligence v vicarious liability for an employee's conduct?
direct negligence = the employer is liable for their own negligence.
vicarious liability = the employer is liable for the employee's actions.
161
Are employer's liable for the intentional torts of their employees?
Generally not... except when the employee's conduct is within the scope of employment (a bar bounder beats up a customer thinking he is serving the employer's interest).
162
Frolic v Detour (scope of employment)
Detour = minor deviation from the scope of employment for which the employer is liable for.
Frolic = major deviation from the scope of employment for which the employer is not liable.
163
generally, are employers liable for torts committed by independent contractors?
Generally no.
164
Independent contractor v. employee?
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.
165
What are non-delegable duties for which an employer will be vicariously liable for an independent contractor's torts?
1) inherently dangerous activities
2) duties to the public or specific plaintiffs for certain types of work, such as construction work by a roadway;
3) shopkeepers have a duty to keep the premises safe for the public.
166
Under the apparent agency doctrine when is an independent contractor treated as an employee?
If the injured person accepted the IC's services based on a reasonable belief that the IC was an employee, based on manifestations from the putative employer; and the IC's negligence is a factual cause of the harm to one who receives the services, and such harm is within the scope of liability.
167
When are business partners liable for the torts of other business partners?
When the tort is committed within the scope of the business's purpose.
168
What is negligent entrustment?
An owner can be directly liable for negligently entrusting a vehicle (or any other dangerous object) to someone who is not in the position to exercise reasonable care.
169
What is the family purpose doctrine?
the owner of an automobile may be vicariously liable for the tortious acts of any family member driving the car with permission.
170
Owner liability statutes
the owner of an automobile may be vicariously liable for the tortious acts of anyone driving the car with permission.
171
Are parents vicariously liable for their minor children's torts?
Generally not.
172
Can parents be liable for their own negligence with respect to their child's conduct?
Yes, such as negligent supervision.
173
What is "Dram Shop" liability
For commercial establishments, it holds bartenders, bar owners, and servers liable for injuries caused when people drink too much alcohol and injure third parties. In many states liability is limited to serving minors or people who are visibly intoxicated.
Some states also hold social hosts liable for serving alcohol to a guest who is then injured or injures another. Statutes vary and often limit liability to serving alcohol to a minor.
174
Are states and the federal government liable from tort liability?
Traditionally, state and federal governments were immune from tort liability. Immunity has been waived by statutes.
175
What is the federal torts claims act?
It expressly waives immunity and allows the federal government to be sued for certain kinds of torts. There are exceptions to this waiver of immunity (i.e., situations in which the federal government maintains immunity), including discretionary functions, traditional government activities, and certain enumerated torts.
176
Have states and municipalities waived immunity from torts?
Most states have waived immunity to some extent. Municipalities are generally governed by the state tort claims statute. There is often a distinction made between governmental and proprietary functions.
Governmental functions (police, court system) - immunity applies
Proprietary functions (often performed by private company like utilities, parking lots) - immunity has been waived.
177
Immunity from torts and government officials
discretionary functions = immunity applies
ministerial functions = no immunity
178
What is the Westfall act?
It precludes any personal liability on the part of a federal employee under state tort law.
179
What were intra-family immunities?
These have largely been eliminated...a family member can be sued for negligently injuring another family member.
180
Does immunity for parents apply to core parenting activities?
Yes
181
Is there charitable immunity?
Eliminated in most states but some states still limit recovery.
182
What is joint and several liability?
When two or more defendants are each liable for a single and indivisible harm to the plaintiff; each defendant is subject to liability to the plaintiff for entire harm.
Plaintiff can recover all of the damages from any negligent party.
The plaintiff cannot recover more than the total damages (no double recovery).
183
When is joint and several liability applied?
1) When there are two or more tortfeasors
2) tortfeasors are acting in concern;
3) alternative liability
4) res ipsa loquitur used against multiple defendants;
5) vicarious liability - both employer and employee are liable.
184
Can multiple defendants be held jointly and severally liable even if a jury apportions each defendant a different percentage of fault?
Yes...some jurisdictions limit a defendant's joint liability if he is less than 10% at fault. The defendant will be liable only for his share of the fault.
185
What is contributory negligence?
Traditional rule where if the plaintiff was negligent in some way, that negligence completely precluded the plaintiff's recovery. This was the old common law rule that is still the rule in only a handful of states.
186
What was the "last clear chance" doctrine?
applied in contributory negligence jurisdictions and allowed 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.
187
What is comparative fault?
When a plaintiff's negligence does not completely bar recovery; it limits the plaintiff's ability to recover. Most jurisdictions have adopted a comparative fault approach.
188
Pure comparative negligence v. modified comparative negligence
Pure = the plaintiff's recovery is reduced by the plaintiff's percentage of fault.
Modified = if the plaintiff is more at fault than the defendant, then the plaintiff cannot recover. Some jurisdictions also say that if the plaintiff and defendant are equally at fault, then the plaintiff's recovery is barred.
189
Is comparative fault a defense to intentional torts?
Nope
190
If the defendant's conduct rose to willful, wanton, or reckless, will the plaintiff's recovery still be reduced by the portion of the plaintiff's own negligence?
Yes, it may.
191
What is imputed contributory negligence?
When one party's negligence is imputed to another party. Imputed contributory negligence is generally disfavored...it does not apply to:
1) a child plaintiff whose parent's negligence was a contributing cause of her harm, in a suit against a third party.
2) a married plaintiff whose spouse was contributory negligent in causing the harm, in a suit against a third party.
192
Assumption of risk defense to negligence
Applies when a party knowingly and willingly embraces a risk for some purpose of his own.
Analogous to the defense of consent in intentional torts. It can be express or implied.
193
Express assumption of risk
This is typically in writing, such as an exculpatory clause in a K. In general, parties can contract to disclaim liability for negligence. Courts will ask two questions: (1) is the waiver clear and (2) is the waiver enforceable.
194
When might a court not enforce an exculpatory provision in certain situations?
1) the waiver disclaims liability for reckless or wanton misconduct
2) there is a gross disparity of bargaining power between the two parties;
3) the party seeking to enforce the provision offers services of great importance to the public (medical services)
4) the provision is subject to contract defenses (fraud or duress);
5) the enforcement would be against public policy.
195
Is there an implied assumption of risk for participants and spectators at athletic events?
courts often hold that a participant or spectator cannot recover because they knew of the risks and chose to accept those risks.
196
is there an implied assumption of risk when unreasonably proceeding in the face of known, specific risk?
This occurs when the plaintiff voluntarily encounters a known, specific risk. In contributory negligence jurisdictions and a minority of comparative-fault jurisdictions - this form of assumption of risk meant a complete bar to recovery. For most comparative fault jurisdictions, this form of assumption of risk has been merged into the comparative fault analysis and merely reduced recovery. The issue is whether the plaintiff unreasonably encountered the risk.
197
Are negligent intervening acts usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff?
Yes... negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable too the plaintiff. Therefore, if someone is negligent in coming to the rescue of someone who was injured by the defendant's negligent act and is also harmed, then the defendant could be liable for the harm suffered by the negligent rescuer as well.
198
Does transferred intent apply when a defendant's intentional use of force is privileged?
Nope.
199
What is required to have standing to sue for private nuisance?
The plaintiff must have a possessory interest in that property.
200
When is a waiver of the right to sue for another person's tortious conduct not valid?
when it violates public policy... such as when the Defendant (1) is the plaintiff's employer, (2) a hotel or common carrier, (3) a public servant or service, or (4) has substantially more bargaining power.
201
While a commercial supplier in the chain of distribution may be subject to strict products liability...if they did not negligently, recklessly, or intentionally fail to discover the product defect (no independent culpability), what can they recover from suppliers earlier in the distribution chain?
They can recover full compensation (indemnity) from suppliers earlier in the distribution chain.
202
If a statement constitutes slander per se, will one prevail in a defamations suit despite not being able to prove pecuniary loss?
Yes...if a statement is slander per se, harm is presumed so one can prevail despite lack of pecuniary loss evidence. A statement constitutes slander per se when it accuses the plaintiff of:
(1) a serious crime,
(2) conduct that adversely affects his/her reputation,
(3) serious sexual misconduct, or
(4) having a loathsome disease.
203
What are the requirements of slander (spoken defamation)?
Requires proof that the defendant intentionally or negligently communicated a false statement about the plaintiff to a 3rd party. Negligent communication occurs when the defendant could have foreseen that his/her statement would be heard by a third party.
204
When is a commercial supplier strictly liable for harm caused by a defective product that lacks adequate warnings?
If legally sufficient warnings would have prevented the plaintiff's harm.
205
What proof does Libel require?
Proof that the defendant (1) knowingly communicated a false statement about the plaintiff to a third party or (2) negligently failed to determine the statement's falsity (no reasonable care sued to determine the truth).
206
Under the majority approach to breach of warranty, who may sue for breach of product warranty?
Only a purchaser or members of the purchaser's family or household have standing to sue...but they can only recover for personal injury.
207
Under strict liability, does it matter how careful the defendant is?
No defendants will be liable no matter how careful they are.
207
208
What are the 3 general categories of strict liability?
1) abnormally dangerous activities,
2) animals; and
3) defective products.
209
What is the basic 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.
210
What are the "abnormally dangerous" activity factors?
1) Whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care;
2) the severity of the harm resulting from the activity
3) the appropriateness of the location for the activity; and
4) whether it has great value to the community.
211
What is the scope of liability for abnormally dangerous activities?
defendant is liable for the harm that flows from the risk that made the activity abnormally dangerous.
212
What are wild animals and when are people strictly liable for wild animals?
Wild animals - as a species or class, not customarily kept in the service of humankind (third restatement limits this by excluding animals that pose no obvious risks of causing substantial personal injury). Owners are strictly liable for the harm arising from the animal's dangerous propensities. In regards to trespassers, while injuries caused to licensees or invitees are subject to strict liability, they are not strictly liable to trespassers. There is an exception though in some jurisdictions for injuries caused by a vicious watchdog.
213
When are people strictly liable for domestic animals?
If the owner knows or has reason to know that the particular animal has dangerous propensities, the owner is strictly liable. Many states hold dog owners strictly liable for injuries caused by dogs ("dog bite" statutes).
214
When is an owner strictly liable for trespassing animals?
The owner of an animal is strictly liable for reasonably foreseeable damage caused by his animal while trespassing on another's land (ex: cows get out and trample a neighbor's property).
There are exceptions for household pets, unless the owner knows or has reasons to know that the pet is intruding on another's property in a harmful way. Also for animals on public roads, a negligence standard applies.
215
Strict liability defenses
1) plaintiff's contributory negligence does not bar recovery.
2) comparative negligence jurisdictions vary....in some, plaintiff's negligence does not bar recovery; in others, and under the third restatement, the plaintiff's negligence will diminish the recovery.
3) assumption of risk - the plaintiff's assumption of risk is a complete bar to recovery.
216
What are the different types of claims for products liability?
1) negligence - plaintiff must prove duty, breach, causation, and damages.
2) strict liability for defective products
3) breach of warranty claim
217
What are the three types of product defects for strict products liability?
1) manufacturing defects
2) design defects, and
3) failure to warn.
218
What must a plaintiff show for a strict products liability claim?
1) the product was defective (in manufacture, design, or failure to warn);
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.
219
When is there a manufacturing defect?
when the product deviated from its intended design
or the product does not conform to the manufacturer's own specifications.
220
What are the two design defect tests?
1) consumer expectation test: the product is defective in design if it is less safe than the ordinary consumer would expect.
2) risk-utility test: the product is defective in design if the risks outweigh its benefits; must show that there is a reasonable alternative design
The more technical the product is, the more likely it is that experts will be required and the risk-utility test will apply.
221
What are the elements of a failure to warn claim for strict products liability?
(1) there was a foreseeable risk that was not obvious to an ordinary user, and (2) were the steps take to warn about that risk reasonable?
222
What is the learned intermediary rule that often applies to prescription drugs?
Manufacturers of prescription drugs must warn the prescribing physician. There is an exception for drugs marketed directly to consumers.
223
Will courts allow proof of a defect by circumstantial evidence?
Yes courts may allow proof of a defect by circumstantial evidence, especially when the defect causes the product to be destroyed.
224
Is there a privity requirement for strict products liability?
Nope...can sue up and down the chain of production or distribution. Anyone foreseeably injured by the defective product, including purchasers, other users, and bystanders.
225
Who is a proper strict products liability defendant?
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. Casual sellers are not strictly liable but may be liable for negligence. The seller may seek indemnification from another party (the manufacturer).
226
What damages can a plaintiff recover for strict products liability?
Plaintiff can recover for personal injury or property damage.
Purely economic loss is generally not recoverable under a strict-liability theory (may be brought as a breach of warranty claim though).
227
Is contributory negligence a defense to strict products liability?
courts are hesitant to allow the plaintiff's negligent to completely bar the plaintiff's recovery against the defendant for a defective product.
228
Is comparative fault a defense to strict products liability?
the plaintiff's own negligence will reduce any recovery in a strict-products-liability action.
229
Is assumption of risk a defense to strict products liability?
if the risk is one that the plaintiff knew about and voluntarily chose, then the plaintiff will not be allowed to recover.
230
Is product misuse, modification, or alteration a defense to strict products liability?
The manufacturer (or seller) can be liable for a plaintiff's foreseeable misuse, modification, or alteration of a product. However, a substantial change in the product CAN bar recovery.
231
Is compliance with government standards a defense to strict products liability?
Compliance with safety standards is admissible evidence that the product is not defective, but it is not conclusive evidence. There is an exception for federal preemption - when Congress has preempted regulation in a particular area (expressly by statute or impliedly by regulating in the field.
232
What is the "state of the art" defense?
In some jurisdictions, the relevant state of the art at the time of manufacture or warning is evidence that the product is not defective. In other jurisdictions, compliance with the state of the art is a complete bar to recovery.
233
Do disclaimers, limitations, and waivers bar recovery in strict liability claims for defective products?
Generally no
234
Who may warranty claims be brought against?
Warranty claims may generally be brought up and down the distribution chain. Direct privity in contract is not required.
235
What is the implied warranty of merchantability?
That the product is suitable for the ordinary purposes for which it is sold.
236
What is the implied fitness for a particular purpose warranty?
the seller knows the particular purpose for which the product is being sold, and the buyer relies on the seller's skill or judgment.
237
Express warranty
an affirmation of fact or a promise by the seller that is part of the basis of the bargain.
238
In a defamation action, a plaintiff must prove that a defendant did what?
(1) made a defamatory statement;
(2) that is of or concerning the plaintiff;
(3) the statement was published to a third party who understood its defamatory nature; and
(4) resulting in damage to the plaintiff's reputation.
239
What is defamatory language?
language that diminishes respect, esteem, or goodwill toward the plaintiff, or deters others from associating with the plaintiff. Defamatory statements must be false in order to be actionable.
240
Is an opinion actionable as defamation?
Generally no unless it is an opinion that implies a basis in fact.
241
What does "of or concerning" the plaintiff mean?
A reasonable person must believe that the defamatory language referred to this particular plaintiff...
242
When can a member of a group bring a defamation action for statements referring to a group?
Only if the group is so small or the context is such that the matter can reasonably be understood to refer to that member.
243
What does publication mean?
The statement must be communicated to a third party.
A person who repeats a defamatory statement may be liable for defamation.
244
Are internet service providers and platforms publishers for purposes of defamation?
No, federal statute provides that they are not publishers for purposes of damation.
245
What must a public official/public figure plaintiff prove in a defamation case? (constitutional limit)
the person who made the statement either knew that it was false or acted with reckless disregard for the truth (actual malice standard)...malice does not mean motive; it means the defendant either knew that the statement was false or with reckless disregard for the truth. Various types of damages are available.
246
What is the standard for a private individual plaintiff when the defamation involves a matter of public concern?
Plaintiff must prove that the statement is false and that the person who made the statement was negligent with respect to the falsehood (should have known the statement was false). Under the negligence standard, only actual damages are available. If actual malice is met, presumed damages are available.
247
What is libel?
a written, printed, or recorded defamatory statement (including TV/radio broadcasts, e-mail, and electronic communications)
248
what is slander?
a defamatory statement that is spoken
249
What damages can be recovered for libel?
Plaintiff may recover general damages (i.e., recovery without proof of measurable harm).
250
What damages can you recover for slander?
the plaintiff must prove special damages (requires a showing of economic loss); exceptions include statements communicating slander per se.
251
What statements constitute slander per se?
statements involving:
(1) commission of a serious crime;
(2) unfitness for a trade or profession;
(3) having a loathsome disease;
(4) severe sexual misconduct.
252
What damages are available when plaintiff is a private individual and it involves a matter of private concern?
negligence standard (most states require at least negligence) = general damages, including presumed damages, without proving actual malice.
253
Defamation Defenses
1) truth: absolute defense, a truthful statement cannot be actionable as defamation
2) consent: if you consent to defamation you cannot sue
3) privileges: absolute and confidential
254
What are absolute privileges to defamation
the speaker is completely immune from liability for defamation; includes statements made:
(1) in the course of judicial proceedings;
(2) in the course of legislative proceedings;
(3) between spouses; and
(4) in required publications by radio and TV (e.g., statements by a political candidate that a station must carry and may not censor)
255
What is conditional (qualified) privilege to defamation?
plaintiff must show a higher level of culpability:
includes statements made:
(1) in the interest of the defendant (defending your reputation)
(2) in the interest of the recipient of the statement; or
(3) affecting some important public interest
Requirement: statement is made in good faith pursuant to some duty or responsibility.
256
Does the right of privacy apply to corporations?
Nope...just individuals
257
does the right to privacy survive death?
Nope...typically terminates upon death of the plaintiff.
258
What is intrusion upon seclusion?
defendant intrudes upon the plaintiff's private affairs, in a manner that would be highly offensive to a reasonable person.
259
False light
defendant (1) makes public facts about the plaintiff, (2) that place the plaintiff in a false light, (3) which would be highly offensive to a reasonable person.
260
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.
261
Public disclosure of private facts
(1) defendant publicizes a matter concerning the private life of another; and
(2) the matter publicized:
(a) is highly offensive to a reasonable person; and
(b) is not of legitimate concern to the public
This tort is difficult to prove because courts broadly define "legitimate public concern"
262
What damages need to be proven for privacy torts?
plaintiff need not prove special damages (economic loss); emotional or mental distress is sufficient.
263
What are defenses to privacy torts?
(1) consent: applicable to invasion of privacy torts
(2) qualified and absolute privilege: applicable to false light and public disclosure claims
(3) truth: not a defense to privacy torts...as opposed to defamation.
264
What is the first element of intentional misrepresentation? (fraud)
False misrepresentation
1) must be about a material fact
2) can involve deceptive or misleading statements
3) can arise through concealing a material fact
4) generally, no duty to disclose material facts to other parties; may be an affirmative duty if:
- there is a fiduciary relationship
- the other party is likely to be misled by statements the defendant made earlier; or
-the defendant is aware that the other party is mistaken about the basic facts of the transaction, and custom suggesting that disclosure should be made
265
What is the scienter required for intentional misrepresentation?
defendant knows that the representation is false or acted with reckless disregard for its falsity.
266
What is the intent requirement for intentional misrepresentation?
defendant must intend to induce the plaintiff to act in release on the misrepresentation
267
What is the causation element of intentional misrepresentation?
the misrepresentation must have caused the plaintiff to act or refrain from acting.
268
When is reliance not justifiable?
reliance is not justifiable if the facts are obviously false or it is clear the defendant was stating an opinion
269
What are the damages of intentional misrepresentation?
Plaintiff must prove actual, economic, pecuniary loss....nominal damages are NOT available. In most jurisdictions, recovery is the "benefit of the bargain": the difference between the actual value received in the transaction and the value that would have been received if the misrepresentation were true (contract-like damages).
Some jurisdictions allow only out-of-pocket losses (tort-like damages) or the cost of conforming.
270
6 elements of intentional misrepresentation
1) false representation
2) scienter
3) intent
4) causation
5) justifiable reliance
6) damages
271
Elements of negligent misrepresentation (failure to take due care in providing information)
1) the defendant provided false information to a plaintiff;
2) as a result of the defendant's negligence in preparing the information;
3) during the course of a business or profession;
4) causing justifiable reliance and pecuniary loss; and
5) the plaintiff is either: (a) in a contractual relationship with the defendant; or (b) the plaintiff is a third party known by the defendant to be a member of the limited group for whose benefit the information is supplied.
The justifiable reliance must also cause the plaintiff to suffer pecuniary loss.
272
Can negligence defenses be raised to negligent misrepresentation?
Yes
273
What damages can be recovered for negligent misrepresentation?
plaintiff can recover reliance (out-of-pocket) and consequential damages if the negligent representation is proven with sufficient certainty.
274
Intentional interference with a contract elements
1) a valid K existed before the plaintiff and a third party
2) defendant knew of the contractual relationship
3) defendant intentionally interfered with the K, resulting in a breach; and
4) the breach caused damages to the plaintiff.
275
what must the nature of the K be for interference with a K?
Must be a valid K & cannot be terminable at will.
276
When may a defendant be liable for intentional interference with a K?
Defendant may be liable when he prevents a party from fulfilling its contractual obligations or substantially adds to the burden of performance. Defendant's conduct must exceed fair competition and free expression.
277
Interference with a prospective economic advantage
Defendant intentionally interferes with a prospective business relationship or benefit between the plaintiff and a third party, in the absence of a K.
The elements are the same for intentional interference with a K (without the K), but the conduct must be independently wrongful.
278
Misappropriation of trade secrets
(1) plaintiff owns information that is not generally known (a valid trade secret); (2) plaintiff has taken reasonable precautions to protect it; and (3) defendant acquires the secret by improper means.
279
Trade Libel (need not necessarily damage the business's reputation) elements
1) publication
2) of a false or derogatory statement;
3) with malice
4) relating to the plaintiff's title to his business, the quality of his business, or the quality of its products; and
5) causes special damages as a result of interference with or damage to business relationships.
280
Slander of title elements
1) publication
2) of a false statement
3) derogatory to the plaintiff's title
4) with malice
5) causing special damages; and
6) diminishes value in the eyes of third parties.
281
Malicious prosecution
a person intentionally and maliciously 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.
282
Abuse of Process
The 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. The conduct must also cause damages.
