Torts [the essentials] Flashcards

Question

Affirmative Duty to Act

Answer 1

GENERALLY: no duty to act affirmatively Exceptions: (1) Special relationship between parties Ex: innkeeper/guests, father/child ALSO places of public accommodation have a duty to prevent injury to guests by third persons (2) D caused peril (3) Assumption of duty by acting: once you choose to rescue = must do so with reasonable care -many states have enacted Good Samaritan statutes--insulating negligent rescuers from liability

Answer 2

**if there has been a physical injury caused by tort--damages for emotional distress can be tacked on without having to go through this analysis** SITUATIONS WITH NO PHYSICAL INJURY Near Miss Cases: P must show that (1) P was within the "zone of danger" and (2) P must suffer physical symptoms from the stress [diagnosable physical symptoms] -minority of states have dropped the physical symptoms requirement Bystander Cases: D negligently injures [kills or seriously injures] 3rd party causing P emotional distress P must show: (1) the P and the injured person are closely related [family members--generally spouses or parent/child] (2) P was present at scene of injury + personally saw the event Special Relationship between P + D: [Business Relationship] P can recover if highly foreseeable that careless performance by D will produce emotional distress Ex: medical patient/medical lab Ex: customer/funeral parlor NOT customer/dry cleaner

Answer 3

MOSTLY FACTUAL P must point to concrete specific behavior when the Ds behavior fell short of the standard of care owed to them Res Ipsa Loquitur: [used by P who does not have specific info about breach] The very occurrence of an event tends to establish that there was a breach of duty P must show: (1)accident is normally associated with negligence Ex: barrel falling out of a window (2) accident would normally be due to negligence of someone in Ds position **this can often be shown by evidence that the instrumentality causing the injury was in exclusive control of the D] Result of Res Ipsa Loquitur: P has made a prima facie showing and there can be no directed verdict for D--WILL go to the jury

Answer 4

Causation = the link between the breach + the harm General Test: BUT FOR Test P must convince the jury BUT FOR THE BREACH that harm would not have occurred -D can refuse with "even if" Merged Causes--Substantial Factor Test 2 Ds acting independently each commit a breach combining into one divisible harm ASK: would breach have caused the whole harm? = jointly + severely liable P could recover full damages from either D Uncertain Causes Approach: Two acts + only one causes injury but unsure which one Ex: D1 and D2 both negligently fire shot guns. P gets hit but no one knows if it was D1 or D2 Outcome: shifts burden to Ds -both Ds will have to prove that the bullet was not theres -if they cannot--they both may be liable

Answer 5

Ds conduct must ALSO be the proximate cause of the injury Essentially: P needs to convince that this is all fair General Rule: Foreseeability Was outcome foreseeable? Guidelines: SQUISHY (1) Passage of time (2) geographic distance (3) prior occurrence Common Foreseeable Intervening Forces: [are a thing] -medical malpractice -negligence of rescuers -protection or reaction forces to Ds conduct -disease or accident substantially caused by original injury Superseding Forces: break the causal connection between the Ds initial negligent act and the injury -unforeseeable results

Answer 6

Egg-Shell Skull Doctrine: must take your P as you find them Once P has established all other elements of claim--P must receive all damages suffered even if surprisingly big in scope **this is not limited to negligence claims** Contributory Negligence: P is contributorily negligent Outcome: Ps claim is barred Pure Comparative Negligence: Trier of fact weights the Ps negligence (contributory negligence) and reduces damages accordingly (percentage) Partial Comparative negligence: -bars Ps recovery if their negligence was more serious than the Ds negligence -otherwise same as pure

Answer 7

Liability without Fault

Answer 8

Domesticated Animals: GENERALLY no strict liability Exception: -if knowledge of animals dangerous propensities [that are not common to species] Exception [to exception]: even if have knowledge no SL to trespassers on land Trespassing Animals: owner is SL for reasonably foreseeable damage done by their animals trespassing Wild Animals: Owner is SL to licensees and invitees for injuries caused by wild animals (even if pets) SL is NOT available for trespassers -trespasser will need to prove negligence

Answer 9

Test: (1) can't be made reasonably safe through exercise of ordinary care (2) activity is not commonly used in the community Ex: anything with explosives, dangerous chemicals etc SL applies when injury is caused by the dangerous aspect of the activity

Answer 10

Could be many claims: -negligence -UCC -misrepresentation/fraud -could also be SL Elements for SL: (1) D is merchant [commercial supplier] (2) product is defective (3) product was not substantially altered since leaving Ds control [presumption that ordinary channels of commerce are not alternation] (4) P was making a foreseeable use at time of injury (this does not only mean INTENDED use) Times of Defects: (1) Manufacturing Defects: Product emerges from manufacturer different from others + more dangerous than consumers would expect (2) Design Defect: Risks associated with product design outweigh utility of design -P must show that an alternative design would been safer + practical + economically feasible (3) Information Defect: Hidden risks without adequate warnings/instructions Adequate = -prominent -comprehensible -provide info about mitigating risk

Answer 11

**MUST BE MAJOR + INTOLERABLE* An invasion of property rights: Private + Public Private Nuisance: Interference with use and enjoyment of own property -this includes spite cases--where there are super bright lights or super loud parties -cannot be a result of the Ps hypersensitivity Public Nuisance: Act that unreasonably interfers with the health, safety, or property rights of the community

Answer 12

Liability that is based on relationship Employer/Employee: Employer is vicariously liable for any tortious acts committed by their employee if they occur within the scope of the employment relationship [repsondeat superior] -Detour: employee makes minor deviation from employers business for own purpose = still acting within scope -Frolic: deviation in time or geographic area is substantial = not within scope = employer not liable Intentional Torts: are generally outside of scope of employment -can be within it if employee is acting further employers purposes -also specific jobs = bouncer, bill collector etc Independent Contractors: Hiring party is generally not liable for torts Exception: when a duty is non-delegable--ex: the duty of a business to keep its premises age for customers

Answer 13

Joint + Several Liability: P can recover full damages from any D they choose Contribution: when one D who paid it all seeks contribution from other Ds Methods: -comparative contribution -equal shares -NOT allowed with intentional tortfeasors Indemnification: involves shifting the entire loss between or among tortfeasors Available when (1) in vicarious liability situations (2) under strict products liability for the non-manufacturer -they can get fully reimbursed

Answer 14

Claim by spouse of injured party, derivative of injured party's claim Claiming loss of: -household services -companionship -sex

Answer 15

(1) Defamatory statement that specifically IDs D (with name or not) (2) published to 3rd party (3) falsity (4) fault (5) damage to Ps rep Defamatory statement = any statement that adversely affects [s rep--NAME CALLING IS NOT ENOUGH -generally opinion is not actionable but it is if it implies based on facts Publication: must be at least one other person -the more sharing = the more damages -this can be intentional or negligent Falsity: P has to show that statement is false Fault on Ds part: degree of awareness that D had of falseness of statement -if reasonably believed was true is not defamation Living Person Requirement: must be alive Group Defamation: Small group = everyone has claim Large group = no one has claim Public Figure [regularly in public eye]: must show actual malice -means that (1) knowledge that the statement was false or (2) reckless disregard as to whether it was false SUBJECTIVE Private Person involving matter of public concern: only negligence must be show

Answer 16

Defamation in "permanent form" [written, recorded etc] = damages are presumed [no proof needed]

Answer 17

Spoken defamation Slander Per Se: words so clearly defamatory that ordinary person would understand injury = damages presumed -adversely reflect on Ps business/profession -state that P has committed a serious crime -assert that P has engaged in serious sexual misconduct -state that the P has a loathsome disease If none of these = must show economic harm otherwise it is dismissed

Answer 18

Consent = complete defense Truth = complete defense Privilege: ABSOLUTE PRIVILEGE -communications between spouses -remarks made during judicial proceedings, by legislators during proceedings [lawyers + witnesses too] QUALIFIED PRIVILEGE Can be lost through abuse These privileges are available on a case by case basis when there is public interest in encouraging candor [statements made in good faith + within scope] -references + recs -reports of public hearings/meeting -statements made to those who are to take official actions -statements made to defend ones own actions, property or rep Common Interest Privilege: qualified privilele for statements made to collegaues in same company

Answer 19

Potential Wrongs (1) Appropriation of the Ps picture or name [for commercial purposes] (2) Intrusion on the Ps affairs or seclusion (3) publication of facts placing the P in a false light (4) public disclosure of private facts about P (2) an invasion of Ps seclusion that would be highly offensive to reasonable person necessary [need to be in a place with an expectation of privacy] (3) False light: Dissemination of material falsehood about P that would be highly offensive to reasonable person [also can be defamation!] (4) Disclosure: widespread dissemination of confidential info about P not of legit concern to public + highly offensive to reasonable person [must be a truly confidential fact--not already shared] Exceptions: Re Appropriation: newsworthiness: putting pic in paper OK -not limited to celebrities Defenses: Consent Absolute/Qualified Privilege Absolute/ Qualified Privilege for False Lights

Torts [the essentials] Flashcards

(43 cards)