Torts MC Flashcards
(112 cards)
1
Q
Conversion damages
A
The defendant is liable for the fair market value of the chattel at the time of the conversion.
1
Q
Conversion (def)
A
A defendant who has permission to use the plaintiff’s chattel commits conversion when he/she (1) intentionally uses the chattel in a way that exceeds the scope of permission AND (2) seriously violates the plaintiff’s right to control the chattel.
2
Q
intentional infliction of emotional distress
A
A defendant is liable for intentional infliction of emotional distress (IIED) when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the plaintiff severe emotional distress.
Conduct is considered extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
3
Q
Special relationships
imposing duty to protect others
A
Mnemonic: Please Help Eliminate Safety Concerns Causing Injuries
Parent/child
Hospital/patient
Employer/employees
Shopkeeper/business invitees
Common carrier/passengers
Custodian/person in custody
Innkeeper/guests
4
Q
innkeepers owe what kind of duty to customers?
A
in most jurisdictions today, innkeepers only owe a duty to use ordinary care to protect their guests while they are on the premises.
5
Q
To determine whether a defendant has used ordinary care, the trier of fact may consider
A
all relevant factors—including compliance with community or industry custom.
But compliance with (or deviation from) custom is not conclusive on the issue of negligence.
6
Q
Common carrier duty (maj, min)
A
Under the common-law approach to common-carrier liability, common carriers owe the highest duty of care to their passengers and can be liable for slight negligence.
Under the modern approach, common carriers only owe a duty to use reasonable care to protect passengers from harm that arises within the scope of that relationship.
7
Q
Res ipsa loquitur
A
Trad approach (maj)
- Plaintiff’s harm would not normally occur unless someone was negligent
- Defendant had exclusive control, or was responsible for all others who had control, over thing that caused harm and
- Plaintiff did nothing to cause harm (vast majority of comparative fault jurisdictions loosely apply the third requirement—that the harm not be due to the plaintiff’s own actions—since contributory negligence is no longer a total bar to recovery.)
Third Restatement (minority view)
- Accident that caused plaintiff’s harm is type that ordinarily happens due to negligence of class of actors
- Defendant is relevant member of that class
*The modern trend among many courts is to ignore the exclusivity requirement when applying the traditional standard for res ipsa loquitur in negligence actions that involve products liability or medical malpractice.
8
Q
default rule - contributory neg or comparative fault?
A
comparative fault is default on MBE
9
Q
“Last clear chance” doctrine
A
In contributory-negligence jurisdictions (NOT COMPARATIVE F), plaintiff may mitigate legal consequence of contributory negligence if defendant had last clear chance to avoid injuring plaintiff but failed to do so.
- Helpless P
- Plaintiff, due to contributory negligence, is in peril from which plaintiff cannot escape
- Defendant is liable if defendant knew or should have known of plaintiff’s peril & harm could have been avoided but for defendant’s negligence - Inattentive P
- Plaintiff, due to contributory negligence, is in peril from which plaintiff could escape if plaintiff was paying attention
- Defendant is liable if defendant had actual knowledge of plaintiff’s inattention
10
Q
Ds for strict product liability claims
A
Strict products liability claims can be brought against commercial suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff.
NOT service providers
11
Q
Any commercial seller in the distribution chain—e.g., manufacturer, distributor, retailer—is subject to strict products liability if
A
(1) the commercial seller’s product was defective when it left the commercial seller’s control and (2) that defect caused the plaintiff harm.
Strict liability is imposed even if the commercial seller did not create or know about that defect.
12
Q
Assumption of the risk
A
voluntary exposure to known risk of harm
13
Q
Scope of defendant’s duty of care
A
Cardozo view (majority rule): Duty owed only to persons who might be foreseeably harmed as a result of defendant’s negligence (ie, persons within zone of foreseeable harm)
Andrews view (minority rule):
Duty owed to everyone on earth if anyone might be foreseeably harmed as a result of defendant’s negligence
14
Q
D’s liability for wild animal
A
A defendant is strictly liable for harm that (1) is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or (2) directly results from the wild animal’s abnormally dangerous characteristics
15
Q
Wild animal (def)
A
An animal is wild if it is not by custom devoted to the service of humankind in the place where it is being kept
An animal is wild if it belongs to a category of animals that have not been generally domesticated in the United States and are likely to cause personal injury unless restrained. This is true even if the wild animal has been tamed for many years.
16
Q
Several liability - what recovered
A
when multiple defendants cause the plaintiff indivisible harm, the plaintiff can only recover from each defendant the portion of damages that corresponds to that defendant’s proportionate share of fault
17
Q
Joint & several liability - what recovered
A
Any tortfeasor can be held liable for plaintiff’s total amount of damages
Tortfeasors can sue each other for contribution
18
Q
mbe default liability
A
Joint & several liability
19
Q
partial comparative negligence
A
Modified (or partial) comparative negligence –
maj: when the plaintiff’s own negligence contributes to his/her harm, the plaintiff’s recovery is reduced by his/her proportionate share of fault and is barred if the plaintiff’s fault exceeds 50%
min: in a small minority of these jurisdictions, a plaintiff recovers nothing when the plaintiff and defendant are equally at fault.
20
Q
Duty to trespasser
A
Trad approach (50%)
- land possessors owe no duty to unknown or unanticipated trespassers.
- But they do owe a limited duty to known or anticipated trespassers to:
…. warn the trespasser of hidden, artificial (i.e., man-made) conditions that are known to the land possessor but unlikely to be discovered by the trespasser and
…. use reasonable care while conducting activities on their land.
Modern approach: land possessors owe a duty of reasonable care to all land entrants (except flagrant trespassers).
21
Q
Liability for private nuisance arises when
A
a defendant’s interference with the use and enjoyment of the plaintiff’s property is both substantial and unreasonable
22
Q
substantial (nuisance)
A
offensive, annoying, or intolerable to a normal person in the community
23
Q
unreasonable interference (nuisance)
A
effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria:
- Per se nuisance
- Conduct unsuited to location
- Avoidable harm
- Severe harm
- Malicious conduct
PUASM
Peeps up and smacked mushrooms
courts will also balance interference with utility of the nuisance
24
Conduct unsuited to location
(Unreasonable interference for private nuisance)
Defendant's conduct is unsuited to location
and
Plaintiff's use & enjoyment of property are suited to location
25
Avoidable harm
Defendant's failure to exercise reasonable care regarding risk of harm caused interference
26
Severe harm
(Unreasonable interference for private nuisance)
Plaintiff's land or fixtures sustained physical damage
27
Malicious conduct
(Unreasonable interference for private nuisance)
Defendant's activity or condition created by defendant is motivated entirely or almost entirely by malice
28
strict liability will be imposed for owner of a domestic animal if:
the owner knew or had reason to know about the domestic animal's dangerous propensities (i.e., behavior uncommon for its species)
and
the plaintiff's harm arose from those dangerous propensities.
29
Intentional infliction of emotional distress of third party - elements
The plaintiff contemporaneously perceived (i.e., saw or overheard) the defendant's conduct.
The plaintiff was a close relative (i.e., immediate family member) of the harmed third party.
The defendant knew that the plaintiff was present and closely related to the harmed third party.
30
MBE default rule for contributory or comparative neg
Pure comparative fault
31
Under the majority rule, a duty of care is owed to...
persons who might be foreseeably harmed by the defendant's negligent conduct.
Cardozo
32
Negligent infliction of emotional distress (NIED) theories of recovery
(1) zone of danger, (2) bystander, and (3) special situation
Most jx require some physical manifestation of distress for (1) and (2)
33
zone-of-danger theory arises when:
the defendant's negligent conduct placed the plaintiff in danger of immediate bodily harm
and
that danger caused the plaintiff serious emotional distress.
34
bystander recovery - NIED
- Closely related to person injured by D
- Present at scene of injury;
- Personally observed the injury
(relational, geographic, temporal proximity required)
35
Special situations - NIED
Negligent mishandling of a corpse
Negligent medical info (eg negligent misdiagnosis of terminal illness)
Erroneous announcement of death (eg common carrier mistakenly reporting the death of a relative)
contaminated food with a repulsive foreign object?
****A physical manifestation of emotional distress is not required in all of the special-situations****
36
Proximate cause (def)
aka legal cause
the plaintiff's harm was a reasonably foreseeable consequence of the defendant's conduct, meaning that the conduct was of a type that generally increases the risk of that harm
37
the plaintiff's harm was a reasonably foreseeable consequence of the defendant's conduct, meaning that the conduct was of a type that generally increases the risk of that harm
the product poses a foreseeable risk of harm that is not obvious to an ordinary user
and
reasonable instructions or warnings by the commercial supplier could have reduced that risk.
38
the learned-intermediary rule
a manufacturer of a prescription drug or medical device will not be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.
39
False imprisonment occurs when:
defendant intends to confine plaintiff within limited area
defendant's conduct causes such confinement or defendant fails to release plaintiff from confinement despite owing duty to do so and
plaintiff is conscious of confinement OR, in minority jurisdictions & under Third Restatement, plaintiff was harmed by confinement
40
merchant's privilege applies
the defendant is a merchant or a merchant's employee or agent
the defendant reasonably believes that the plaintiff has wrongfully taken or is attempting to take merchandise from its premises or failed to pay for personal property or services rendered there
detainment occurs on, or in the immediate vicinity of, the merchant's premises and
detainment is conducted for a reasonable amount of time and in a reasonable manner to investigate the matter, recapture the property, or facilitate the plaintiff's arrest.
41
Affirmative duty to act
- Assumption of duty
- Creation of risk
- By Statute
- By Contract
- By Authority
- By Relationship
- Land possessor
ACSCARL
Assumption of duty: Defendant who voluntarily aids or rescues another has duty to use reasonable care when rendering aid or performing rescue
Creation of risk: Defendant whose conduct creates foreseeable risk of harm or places another in peril has duty to exercise reasonable care to prevent further harm by rendering care or aid
By statute: Statute imposes obligation to act for another's protection
By contract: Duty to use care when performing contractual obligations
By authority: Duty to exercise reasonable control over third party whom defendant has actual ability & authority to control. --- Examples: parent over child, custodian over person in custody, employer over employee, mental-health professional over patient
By relationship: Duty to protect, aid, or assist plaintiff with whom defendant shares unique relationship --- Examples: business proprietor with patron, common carrier with passenger, innkeeper with guest, employer with employee, parent with child
Land possessor: Duty to mitigate risks posed by natural or artificial conditions on land
42
guest statutes
Under these statutes, the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct.
43
a driver's duty of care to passengers
a duty to exercise ordinary care (in most jx). exception example: guest statutes
44
attractive-nuisance doctrine
(liab for neg) land possessors have a duty to exercise reasonable care to protect child trespassers from artificial (i.e., man-made) conditions on their land when:
- children
- unreasonable risk
- age can't appreciate
- risk > utility and burden
the condition exists where the land possessor knows or should know that children are likely to trespass
the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children
children of the trespasser's age cannot reasonably discover or appreciate the risk and
the risk outweighs the condition's utility and the burden of eliminating the risk.
45
the commercial supplier of a component that is integrated into a defective product is strictly liable when
the component is defective
or
the supplier substantially participated in the integration of the component into that product's design and the component's integration caused the product to be defective.
46
doctrine of negligence per se
the majority approach is that duty and breach can be conclusively presumed if:
the defendant violated a statute or ordinance
that statute or ordinance was intended to prevent the type of harm suffered by the plaintiff and
the plaintiff is within a class of persons that the statute or ordinance was intended to protect.
[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.]
47
To recover under a products liability claim, the plaintiff must prove that:
the defective product caused the plaintiff's injuries when it was used in an intended or reasonably foreseeable way (what matters is whether product was used that way, not whether injury was foreseeable)
and
the defect existed at the time the product left the commercial seller's control.
48
To prevail on a claim for intentional interference with a contract, a plaintiff must prove that:
a valid contract existed between the plaintiff and a third party
the defendant knew of that contractual relationship
the defendant intentionally and improperly interfered with the contract's performance
and
that interference caused the plaintiff pecuniary (monetary) loss.
49
a third party _____ rely on a contractual defense in defending against an intentional tort claim.
cannot
50
An employer is generally not liable for an intentional tort (e.g., battery) committed by its employee because that conduct typically falls outside the scope of employment. However, such liability will arise in two instances:
When the use of reasonable force is inherent in the employee's job and the employee acts in the course of his/her work
When the employee is authorized by the employer to act on its behalf and the employee's position provides an opportunity to commit an intentional tort
51
Land possessor's duty to land entrants (modern)
Reasonable care owed to all land entrants regardless of status on land (eg, invitee)
EXCEPT flagrant trespassers.
But, land possessor must:
- not act in intentional, willful, or wanton (ie, tortious) manner that causes physical harm
and
- exercise reasonable care to flagrant trespassers in peril
52
flagrant tresspasser (def)
A flagrant trespasser is one who enters another's land without permission and whose entry is particularly egregious—e.g., entry that results in commission of a crime.
53
Standards of care for negligence - Adult - when adjusted and when not adjusted?
Standard adjusted for physical disabilities, superior skill & knowledge, involuntary intoxication
Standard not adjusted for mental & emotional disabilities, voluntary intoxication
54
A court should grant a defendant's motion for a directed verdict if
the plaintiff fails to present legally sufficient evidence to support every element of the claim (duty, breach, causation, damages)—i.e., no reasonable jury could find in the plaintiff's favor
55
Consent is a defense to
intentional torts (not neg)
56
Failure to make the required disclosure breaches the standard of care owed by a physician to his/her patient and subjects the physician to negligence liability if:
the failure to disclose caused the patient to consent to the treatment or procedure (i.e., the patient would not have done so had the risk been disclosed)
and
the undisclosed risk materialized and caused the patient physical harm.
57
Exceptions for duty to disclose risk of treatment or procedure (as a doc):
- risks commonly known
- patient unconscious or otherwise incapable of giving consent
- patient waived right to info OR
- disclosure threatened patient's well-being
58
intentional infliction of emotional distress (IIED) under the bystander theory - elements
The defendant engaged in extreme and outrageous conduct that emotionally or physically harmed the plaintiff's close family member.*
The defendant's conduct was intentional or reckless (i.e., the defendant knew that the plaintiff was present and closely related to the injured person).
The plaintiff contemporaneously perceived that conduct* and suffered severe emotional distress.
*The plaintiff need not prove these facts if the defendant's design or purpose was to cause severe emotional distress to the plaintiff?
59
Transferred intent - same tort, diff person - which torts?
Assault, Battery, False Imprisonment
*Transferred intent may apply to IIED if, instead of harming the intended person, the defendant's extreme and outrageous conduct harms another.
60
Transferred intent - Different tort; same person - which torts?
Assault
Battery
61
Intrusion upon seclusion
Intrusion upon seclusion is an invasion of privacy that occurs when a defendant intentionally intrudes on a plaintiff's private affairs in a manner that would be highly offensive to a reasonable person—e.g., hacking into an email account, eavesdropping on private convo by electronic device
Unlike the other forms of invasion of privacy, no publication is required to establish liability.
62
Public disclosure of private facts
Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages
Publicized means communicated to the public at large or to so many people that it is substantially certain to become public knowledge
63
factors to determine the amount of compensatory damages the plaintiff can recover in a negligence action:
the initial physical harm caused by the defendant's negligent act
any subsequent harm (physical, economic, or emotional) that is traceable to that initial harm
and
any steps taken by the plaintiff to mitigate that initial harm.
**** the plaintiff's actions prior to the defendant's negligent act are not a factor in determining the amount of compensatory damages a plaintiff can recover (e.g. didn't go to doc right away after injury and doc negligently does surgery)
64
Tort liability of parents
Negligence
-Liable for failure to use reasonable care to prevent minor child from causing foreseeable harm to others (eg, parent fails to warn others about child's violent tendencies)
Vicarious liability
- child acts as parent's agent (eg, child trespasses on stranger's lawn while working for parent's landscaping company)
- state statute imposes liability on parent
(eg, child vandalizes school or commits school violence)
65
If the plaintiff is a public figure who alleges that his/her emotional distress was caused by the defendant's publication , then P must also
show that the defendant published a false statement of fact with actual malice—i.e., knowledge of, or reckless disregard for, the falsity of the statement.
66
assumption of the risk is a defense to strict liability claims based on injuries caused by wild or abnormally dangerous domestic animals in what jx
pure comparative-negligence jurisdiction (default rule on the MBE)
67
does IIED require physical injury?
no
68
Extreme and outrageous conduct
Flagrant indecency (secret taping undressing)
Exploiting known & special vulnerability (harm loved pet)
Abusing authority
Repeated harassment
FEAR
69
The privilege to use reasonable force in the defense of third parties exists when the defendant
reasonably believes that:
the circumstances are such that the third party has a privilege of self-defense
and
the defendant's action is immediately necessary to protect the third party.
70
a defendant can threaten or use deadly force to defend a third party when the defendant
(1) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the third party,
(2) the third party is thereby put in peril of death, serious bodily harm, or rape by the use or threat of physical force, and
(3) the defendant can safely prevent the peril only by the immediate use of deadly force
71
Public nuisance
an unreasonable interference with a right common to the general public.
72
public nuisance requires
the defendant interfered with a public right—e.g., affecting the public at large by emitting a noise that disturbs an entire neighborhood and
that interference was unreasonable—i.e., it either (1) significantly affected public health, safety, peace, or property rights or (2) violated an ordinance, statute, or administrative regulation.
73
when a public nuisance suit is brought by a private individual, that individual must also prove
special damage—i.e., harm different from that suffered by the public at large. If the plaintiff does so, then the plaintiff is entitled to injunctive relief and/or monetary damages.
74
A plaintiff who suffers economic damages without any related personal injury or property damage cannot recover in a ______ (cause of action)
negligence action
75
Trespass to chattels occurs when
the defendant intentionally interferes with the plaintiff's possession of a chattel through dispossession, use, or intermeddling (i.e., causing physical contact).
more minor than conversion
76
Trespass of chattel - prove damages?
Nominal harm is inferred when the interference is through dispossession.
But when the interference is through use or intermeddling, the plaintiff must prove actual damages through one of the following:
- actual harm to the chattel (i.e., impairment of its physical condition, quality, or value)
- substantial loss of use of the chattel or
- bodily harm to the plaintiff
77
misappropriation of the right to publicity elements
a defendant uses the plaintiff's identity—i.e., name, likeness, or item closely associated with the plaintiff—without authorization
the defendant obtains a benefit (e.g., employment) from that use and
plaintiff suffers an injury as a result.
78
zone of danger theory
NIED
the defendant's negligent conduct placed the plaintiff in danger of immediate bodily harm
and
that danger caused the plaintiff serious emotional distress.
79
Intent for battery exists when the defendant
(1) intends to cause contact with the plaintiff's person, (2) intends to cause contact with a third party but instead causes contact with the plaintiff, or (3) intends to commit an assault and instead commits a battery.
80
Rescue doctrine
Rescuers can recover for injuries sustained while attempting to rescue another if that person's peril was caused by defendant's negligence
EXCEPTION (firefighter's rule): Professional rescuers cannot recover for injuries attributable to special dangers of their job—eg:
- firefighter entering burning building
- police officer arresting suspect
- paramedic/lifeguard attempting risky rescue
81
Non-delegable duties
A person who hires an independent contractor is vicariously liable for certain conduct, including:
- Abnormally dangerous activities—an activity is abnormally dangerous if (i) the activity creates a foreseeable and highly signi cant risk of physical harm even when reasonable care is exercised by all actors, and (ii) the activity is not one of common usage;
- Inherently dangerous activities—anactivityisinherentlydangerouswhen,ifreasonablecareisnotexercised,theresultingriskdi ersfrom the types of risk usual in the community;
- Duties arising out of a relationship with a speci fic plaintiff or the public (e.g.,common carrier’s duties owed to passengers, conduct that a ffects the public at large, such as construction work adjacent to a public highway);
- The duty of land occupier to maintain premises in a reasonably safe condition;
- The duty of an employer to maintain a safe work environment for employees; and
- In a minority of jurisdictions, the duty to comply with state safety statutes.
------------------------
From MC:
Maintain safe conditions on premises open to public (eg, store, restaurant)
Safely perform activities that:
- are abnormally or highly dangerous
infringe on private property right (eg, nuisance, trespass)
- are regulated by law or
- are conducted in public place
82
risk-utility test
a product is defective by design when:
the design creates a foreseeable risk of physical harm and
that risk could have been mitigated by a reasonable alternative design (e.g., a modification that reduces the risk for a reasonable cost)
83
To establish a prima facie case of intentional misrepresentation (i.e., fraud or deceit), the plaintiff must show that:
the defendant (i) knowingly or recklessly misrepresented a material fact (ii) with the intent to induce the plaintiff's reliance
and
the plaintiff (i) reasonably relied on the misrepresentation and (ii) suffered pecuniary loss (i.e., monetary loss) as a result.
84
Special relationships imposing duty to protect others
Parent/child
Hospital/patient
Employer/employees
Shopkeeper/business invitees
Common carrier/passengers
Custodian/person in custody
Innkeeper/guests
Mnemonic: Please Help Eliminate Safety Concerns Causing Injuries
85
But when the defendant's negligence is so apparent that a lay person could identify, expert testimony _____ required
is not required
86
Under the risk-utility test, a product is defective by design when:
the design creates a foreseeable risk of harm
and
that risk could have been mitigated by a reasonable alternative design (e.g., a modification that reduces the risk for a reasonable cost).
87
Intent requirement for trespass to land
Defendant must either:
- intentionally enter land (or cause a thing or other person to enter land) or
- intentionally remain on land (or cause a thing or other person to remain on land)
The defendant need only have the intent to enter or cause a physical invasion of the land—not the intent to commit a wrongful trespass.
88
trespass (def)
Trespass to land occurs when a defendant intentionally enters—or causes something to enter—another's land.
89
Assumption of the risk (i.e., the plaintiff's voluntary acceptance of a known risk of harm) is a defense to negligence. But this defense does not apply when
the defendant's tortious conduct left the plaintiff with no reasonable alternative but to proceed despite that risk.
90
Liability for animal owner
The owner of an animal—other than a dog or cat—that intrudes upon another's land is strictly liable for any reasonably foreseeable harm or damage caused by that intrusion
strict liability does not extend to the owner of the land on which the trespassing animals were kept—unless the landowner also had the right to possess the animals.
91
Intrusion by livestock - liability?
strict liability for owner:
Foreseeable intrusion of livestock onto land of another
and
Intrusion causes physical harm typical of livestock (eg, consumption of grass)
92
liability for dogs and cats
owner strictly liable if
dog/cat is abnormally dangerous (known dangerous tendency and phys harm results from that)
or
owner knows or has reason to know that the dog or cat is intruding on another's property in a way that has a tendency to cause substantial harm.
93
Imposition of strict liability
Abnormally dangerous activities (if P's harm results from the risk that made the activity abnormally dangerous in the first place)
Intrusion by livestock
Wild animals
94
Under a negligence theory, the plaintiff can recover damages for
personal injury or damage to property. However, a claim for purely economic loss is not allowed.
95
To prevail on a claim for intentional interference with a contract, a plaintiff must prove that:
a valid contract existed between the plaintiff and a third party
the defendant knew of that contractual relationship
the defendant intentionally and improperly interfered with the contract's performance and
that interference caused the plaintiff pecuniary (monetary) loss.
- A showing of any pecuniary loss is sufficient (need not be significant)
96
Fair-competition privilege is a defense to what
intentional / tortious interference with contract
97
Defendant who intentionally caused third party to (1) decline contractual relationship or (2) terminate existing at-will contract with plaintiff is not liable if:
contract concerned matter in which plaintiff & defendant are competitors
defendant did not use wrongful means
defendant's actions did not unlawfully restrain trade
and
defendant's actions were intended to advance its competitive interests
98
inherently dangerous definition and context
context: nondelegable duty
An activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the type common to the community.
(may be other def)
99
Assault
occurs when:
a defendant intends (1) to cause the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff's person or (2) under the doctrine of transferred intent, to commit a battery
and
the defendant's affirmative conduct causes the [reasonable] plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff's person.
100
Negligent misrepresentation (def)
is based upon a breach of the duty to supply correct information
101
Negligent misrepresentation elements
The defendant negligently provided false information during the course of his/her business or profession.
The plaintiff justifiably relied upon the false information and suffered pecuniary (i.e., financial) loss as a result.
The plaintiff was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied.*
*a defendant who negligently provides information for a particular purpose is not liable for the plaintiff's financial loss if the plaintiff used the information for a different purpose.
102
Publicity in a false light elements
The defendant publicized false information that placed the plaintiff in a false light
The false light would be highly offensive to a reasonable person
The publication was made with actual malice—e.g., reckless disregard for its truthfulness.
The plaintiff suffered damages (e.g. individual received lewd and offensive communications from strangers)
103
public disclosure of private facts elements
The defendant publicly disclosed truthful information about the plaintiff's private life.
The disclosure would be highly offensive to a reasonable person.
The information is not of legitimate public interest.
The plaintiff suffered damages.
104
Rescue doctrine
Rescuer can establish PF negligence case by proving that:
-he/she was injured while attempting to rescue another and
- that person's peril was caused by the D's failure to use reasonable care (negligence)
Next, if P engaged in assumption of risk (knew rescue was dangerous and could have proceeded in reasonable alt. manner) or contributory/comparative negligence (acted unreasonably during rescue attempt).... (CL: recovery barred) (modern: P's recovery reduced).
105
strict products liability applies to
commercial suppliers (manufacture, distribute, or sell products as part of their business) - not casual sellers or service provider
106
products liability causes of action against types of defendants
commercial seller - strict products liability, negligence, misrep, intentional tort
Noncommercial seller - Neg, Misrep, Intentional Tort
Service provider (eg doc or dentist) - no products liability
107
Slander
is defamation through speech, gesture, or any form that isn't libel.
P must prove all:
- D knowingly made false statement about P or negligently failed to determine its falsity;
- Type of statement would tend to harm P's reputation
- D intentionally or negligently communicated that statement to a third party (should have foreseen it would be heard by 3d party)
- Statement caused P special harm (ie pecuniary/monetary loss)*
*However, no proof harm is req when slander per se, accusing P of:
- serious crime (theft, murder, rape)
- adversely affects P's occupation
- serious sex misconduct (eg infidelity)
- having loathsome disease (eg STD)
108
Standards of care for negligence
Adult: ordinary, reasonable adult in similar circumstances
- adjusted for physical disabilities, superior skill & knowledge, involuntary intoxication
- standard NOT adjusted for mental & emotional disability, voluntary intoxication
Professional: must demonstrate same knowledge, skill, care as another professional in similar community (National standard for medical specialists)
Child: must act same manner as reasonable child of same age, intelligence, and experience (BUT adult standard for dangerous adult activity; children under 5 incapable of negligence)
109
An interference arising from a national condition on land - is it a nuisance?
An interference arising from a national condition on land is generally not a nuisance (eg encroaching trees or plants).
However, a D is subject to nuisance liability for natural condition on land that creates a risk of imminent danger to the P or P's property when: (i) risk of harm is obvious or known to D; (ii) D fails to take reasonable steps to eliminate risk; and (iii) the natural condition causes a substantial and unreasonable interference with P's use and enjoyment of land
110
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