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63 Cards in this Set

  • Front
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Negligence:
Requires:
1) Duty on part of D to conform to specific standard of conduct for protection of P against an unreasonable risk of injury
2) Breach of that duty
3) Breach is actual and proximate cause of P's injury
4) Damage as a result of breach.
Intentional Torts: 7
Battery
Assault
False Imprisonment
Intentional Infliction of Emotional Distress
Trespass to Land
Trespass to Chattels
Conversion
Intentional Torts: General Considerations: Intentional Aact
D INTENDS ACT where he INTENDS to CAUSE consequence of his or her act, or where there is SUBSTANTIAL certainty that tortious conduct will result. P does not need actual damages to recover. Contributory negligence NOT a defense to INTENTIONAL torts.
Intentional Torts: General Considerations: Transferred Intent
Under doctrine of transferred intent, intent to commit tort against one person transfers intent to the other tor or to the other injured person.
E.g. X swings to hit Y, misses and hits Z. X has committed assault on Y (assuming Y is aware of X's swing and apprehends physical contact) and battery on Z--even though he didn't intend to hit Z.
Limitations on Transfer of Intent
Applies only to Assault, Battery, False Imprisonment, Trespass to Land, Trespass to Chattels.
PF Case: Intentional Torts to the Person; Battery
1) Battery: Intentional harmful or offensive contact with the person of another.
2) Not necessary that contact be intended to be harmful or offensive (e.g. "kissing battery")
3) Judged by reasonable person standard--would REASONABLE person have found the contact harmful or offensive?
4) Contact offensive only if it has not been consented to.
5) P's person includes anything connected to person
PF Case: Intentional Torts to the Person: Assault
1) Assault is an intentional act that causes imminent apprehension of a harmful or offensive contact with P's person.
2) To be "imminent" act must not be in the future.
3) Words alone not enough unless coupled with apparent present ability or intent (e.g. Over the phone "I'm going to come over and slap the shit out of you," is NOT an assault. A strange man standing over you in a dark alley hissing, "and now..." almost certainly IS.
PF Case: Intentional Torts to the Person: False Imprisonment
A false imprisonment is an intentional act confining the P to a bounded area. P must KNOW of confinement and must have no reasonable means of escape, or be HARMED by imprisonment if not aware.
PF Case: Intentional Torts to the Person: IIED
Intentional infliction of emotional distress is EXTREME and OUTRAGEOUS conduct intended to cause, or with reckless disregard causes severe emotional distress.
In AZ acts must be so outrageous that they go beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized society.
Conduct not NORMALLY extreme outrageous may become so if it is CONTINUOUS OR directed toward a PARTICULARLY SENSITIVE P (D knows of P's special sensitivities--e.g. tender age, existing mental illness, other factors)
P must actually suffer emotional distress to recover, however, physical harm is not required.
PF Case: Intentional Torts to the Person: IIED- THIRD PERSON
Can recover if she can show (i) that she was present when injury occurred; (ii) She was a close relative to injured person, (iii) D was aware of her presence AND her relationship. Conduct does not have to cause physical injury, but severe emotional distress must occur (e.g. D shoots P's child in front of her.)
Distinguish IIED from NIED:
NIED: P may bring an action for negligent infliction of emotional distress if she can show that D created a foreseeable risk of physical injury to her through physical impact or threat of impact. P may only recover damages if D's conduct caused some PHYSICAL injury. While pure emotional distress is insufficient, a severe shock to P's nervous system IS enough. AZ follows majority rule which requires P to have been in Zone of Danger, or threat of impact element can't be established.
Basically--negligent assault with actual harm.
PF Case: Intentional Torts to Property: Trespass to Land
Intentional act causing *physical* invasion of P's land.
If non-tangible (e.g. vibration, noise, odor, etc.) then nuisance.
PF Case: Intentional Torts to Property: Trespass to Chattels
Intentional act that impairs P's right of possession in the chattel. Interference may either be an intermeddling or a dispossession (not rising to conversion) P may recover actual damages from harm to chattel or loss of use OR if dispossession, damages based on rental value.
PF Case: Intentional Torts to Property:
Conversion
Intentional act that interferes with P's right of possession in the chattel. Interference is so serious that it warrants payment of full value of chattel. P may recover FMV of chattel @ time of conversion (e.g. forced sale of chattel) OR may recover chattel (action in replevin)
DEFENSES TO INTENTIONAL TORTS:
Consent
Consent must be VALID (given without fraud or duress), made by one with CAPACITY to consent, and the action must NOT EXCEED SCOPE of consent.
1) Express consent: D not liable if P expressly consents to D's conduct.
2) Apparent consent: That which a reasonable person would infer from custom, usage or P's conduct. Consent implied by law arises where action is necessary to save a person's life (unconscious and can't consent), or some other important interest in person or property.
3) Capacity: Individuals without capacity are incapable of consent (drunk, infant, incompetent)
DEFENSES TO INTENTIONAL TORTS:
Self-Defense
Where person reasonably believes she is being or about to be attacked, she may use reasonable force to prevent the harm.
DEFENSES TO INTENTIONAL TORTS:
Defense of Others
Where person reasonably believes that a third person is being or about to be attacked, she may use reasonable force to prevent the harm.
DEFENSES TO INTENTIONAL TORTS:
Defense of Property
Where person reasonably believes that a tort is being or is about to be committed on her property, she may use reasonable force to prevent the harm, but DEADLY FORCE is NEVER reasonable to merely protect property.
DEFENSES TO INTENTIONAL TORTS:
Police / Private Citizen:
Privilege to Arrest: Misdemeanor
Police officer or private citizen may arrest without a warrant to prevent breach of the peace which is being committed or reasonably appears about to be committed, IN HIS PRESENCE. He may use reasonable force to make the arrest, but NOT deadly force.
DEFENSES TO INTENTIONAL TORTS:
Private Citizen:
Privilege to Arrest: Felony
Private citizen may arrest without a warrant to prevent a felony which is being committed or reasonably appears about to be committed in his presence. BUT if crime has already been committed, then he may arrest without a warrant ONLY if the felony has IN FACT been committed, and he reasonably believes that the person he arrested committed it.
IF crime has NOT IN FACT been committed, then even though he had reasonable grounds to believe that the crime was committed, he will be liable for false arrest or false imprisonment.
Private citizen may use reasonable force to make the arrest, and may use DEADLY FORCE ONLY when suspect poses THREAT OF SERIOUS HARM.
DEFENSES TO INTENTIONAL TORTS:
Felony Arrest by Police Officer
May arrest w/o warrant to prevent a felony which is being committed or reasonably appears about to be committed in his presence. If crime has been committed then he may arrest without a warrant only if he reasonably believes a felony has been committed and the person being arrested is the one who committed it. Police officer may use reasonable force to make the arrest and may use deadly force only when the suspect poses a serious threat of harm.
Harm to Economic and Dignitary Interests:
Defamation
Requires proof of a false and defamatory statement of or concerning the plaintiff published to a third party causing damages.
1) Defamatory language is language tending to adversely affect one's reputation.
2) Of or concerning the P: A reasonable reader, listener or viewer would understand that the defamatory statement referred to P.
3) Publication: Defamatory statement must be intentionally or negligently communicated to a third person.
Harm to Economic and Dignitary Interests:
Defamation: Damages--Libel
Libel: Written defamation
GENERAL DAMAGES PRESUMED for all libels.
AZ distinguishes between libel per se and libel per quod. Defamation is libelous per se when it is DEFAMATORY ON ITS FACE; e.g. impeaches the honesty, integrity or reputation of a person and is ACTIONABLE WITHOUT proof of SPECIAL DAMAGES.
Harm to Economic and Dignitary Interests:
Defamation: Damages--Slander
Spoken defamation: P MUST PROVE SPECIAL DAMAGES. Defamation that falls into slander per se category is actionable WITHOUT special damages. Defamation is SLANDER PE SE when it imputes to the P:
1) Moral turpitude
2) Unchastity (for a woman)
3) Loathesome disease
4) Conduct reflecting adversely on P's business or profession
-Falsity: P does NOT need to prove falsity in common law defamation case because defamatory statements are PRESUMED FALSE. D has burden to prove TRUTH AS A DEFENSE.
-First Amendment Concerns: if P is public figure or issue is of public concern, then the Q requires P to prove FALSITY and Fault on D's part. ASSUME MATTER OF PUBLIC CONCERN whenever P is PUBLIC FIGURE.
Harm to Economic and Dignitary Interests:
Defamation: TRUTH DEFENSE
IF statement is TRUE, P has no cause of action. But, if truth is a defense, look to IIED or invasion of right to privacy (unless P is public figure)
Harm to Economic and Dignitary Interests:
Defamation: FAULT Required
Public official or public figure: person becomes public figure by achieving pervasive fame or notoriety, OR by voluntarily injecting herself into the public limelight.
Where P is public official or figure, P must ALSO PROVE MALICE.
(Malice is knowledge or reckless disregard of statement's falsity)
SUBJECTIVE TEST: Must be a showing that D in fact entertained serious doubts about the statement's truth.
Harm to Economic and Dignitary Interests:
Defamation:Retraction
Retraction--Unless made IMMEDIATELY after publication so as to negate the defamatory effect of statement, retraction does not undo the wrong. Failure to retract after request is often permitted as evidence of malice, and may open the door to presumed or punitive damages as well as retraction.
Harm to Economic and Dignitary Interests:
Defamation: Private Persons
Where P is a private person, but the defamatory statements involve a matter of public concern, P must prove at least negligence on the part of D.
P must prove actual injury, and damages are limited to actual injury. IF P can prove malice, presumed damages are allowed.
Harm to Economic and Dignitary Interests:
Defamation: General Defenses
Qualified Privilege: Fair comment--permissible to make remarks that disparage another's acts in critique of a general public interest.
Exists only if exercise in reasonable manner and for proper purpose--LOST if speaker acts with MALICE.
Harm to Economic and Dignitary Interests:
Invasion of Right to Privacy
Personal right that does not extend to family members and does not survive P's death.
--Appropriation of P's name or likeness for D's commercial advantage.
--Intrusion on P's privacy or seclusion: Intrusion must be into private areas and unreasonable. D's conduct must be objectionable to average person of ordinary sensibilities.
--Publication of facts placing P in a false light in the public eye. D's conduct must be objectionable to average person of ordinary sensibilities.
--Publication of private facts: D's conduct must be objectionable to average person of ordinary sensitivities. TRUTH NOT A DEFENSE.
Intentional Interference With Business Relations:
Tortious interference with K or prospective economic advantage: --Valid K relationship between P and 3rd party
--D must know of that relationship.
--Intend to interfere
--Actually interfere with K
--Causing actual damages.
--P must also show that D acted improperly.
Intentional Interference With Business Relations: Defenses
D may claim that his action was privileged.
D may act within valid business privilege to obtain business for himself or protect his own financial interests, particularly if D is only interfering with P's POTENTIAL business rather than existing Ks.
NEGLIGENCE: Generally
To establish a prima facie case for negligence, P must prove:
1) Duty
2) Breach
3) Causation
4) Damages
Negligence: Duty of Care
Duty of care to prevent a foreseeable risk of harm is owed to foreseeable P's. P's duty is to act as a REASONABLY PRUDENT PERSON in like or similar circumstances.
Negligence: Breach of Duty
Breach occurs when D's conduct falls below the applicable standard of care.
Negligence Per Se:
Recognizes duty and breach for unexcused VIOLATION OF STATUTE.
P must show:
1) He was within the CLASS of persons intended to be PROTECTED by statute
2) Statute was designed to prevent the TYPE of harm that in fact occurred.
EX: AZ has a statute that imposes a criminal penalty for driving intoxicated. As such, the unexcused violation of the statute would prove that the D's conduct was negligent.
Negligence: Causation
P must show that D was both the actual (but-for) and proximate (legal) cause of his injuries.
Negligence: Actual Cause
Actual Cause: But for D's act, P would not have been injured.
--JOINT CAUSE:
Substantial factor test: where several causes bring about injury and any one alone would have been sufficient to cause the injury, D's conduct is the cause in fact if it was a SUBSTANTIAL FACTOR in causing the injury.
Negligence: Proximate Cause
Direct Cause
Proximate cause limits liability for unforeseeable or unusual consequences of one's acts.
DIRECT CAUSE: Where there is an uninterrupted chain of events from negligent act to P's injury, D is liable for all foreseeable harmful results. In direct cause cases, most harm will be deemed foreseeable.
Negligence: Proximate Cause
Indirect Cause
An intervening force is one which comes into play after D's negligence and combines with it to produce an injury. Whether a 3rd party's action will cut off D's liability depends on whether the 3rd party is a foreseeable intervening force. A superseding force breaks the causal connection between D's negligent act and P's ultimate injury, thus relieving D of liability.
Negligence: Damage
P must prove physical injury--preyly emotional damages for negligence are NOT recoverable.
Negligence Defenses:
Pure Comparative Negligence
AZ adopts rules of comparative negligence reducing the P's recovery in proportion to the relative degree of P's fault that is the proximate cause of the injury--NOT A BAR TO RECOVERY, even if P is MORE negligent than other parties.
Negligence Defenses:
Assumption of the Risk
P may be denied recovery if he assumed the risk of any damage caused by his own act.
P's assumption must be knowing--he was aware of the risk, and voluntary--He proceeded willingly in the face of the risk.
Products Liability:
5 Theories
1) Strict Product Liability
2) Negligence
3) Intentional Tort
4) Implied warranties of merchantability and fitness for particular purpose.
5) Express warranty / misrepresentation
Strict Products Liability:
A Commercial supplier who sells product in the regular course of business that leaves his hands in a condition that is defective and unreasonably dangerous to the user, is subject to liability for physical harm.
The product must have reached the P without substantial alteration.
Strict Product Liability:
Absolute Duty Owed by Commercial Supplier
1) Commercial supplier includes manufacturer, wholesaler or retailer.
2) Duty is owed to users, consumers and bystanders PRIVITY NO LONGER REQUIRED.
3) Duty only applies to products-services are not included.
Strict Product Liability:
Breach of Duty; 3 Types:
Manufacturing Defect
1) Manufacturing Defect: Present when a product emerges from manufacturing different and more dangerous than the properly made products. To prove manufacturing defect, P must show that the product failed to perform as safely as an ordinary consumer would expect (D must anticipate reasonable misuse)
Strict Product Liability:
Breach of Duty; 3 Types:
Design Defect
A design defect is present when all products of a line are the same (and conform to specs) but have dangerous propensities (e.g. Tiny Tots Lawn Dart Kit) To prove design defect P must show D could have made the product safer without serious impact on product's price or utility.
Strict Product Liability:
Breach of Duty: Inadequate Warning
To prove inadequate warning, P must prove that the product fails to warn consumer of the foreseeable risks involved in using the product. Duty to warn extends only to hidden or uncommon dangers not readily apparent to the average consumer.
Strict Product Liability:
Causation:
Actual and proximate cause.
Strict Product Liability:
Damages
Physical injury or property damages must be shown. Punitive damages may be recoverable. Purely economic damages are NOT recoverable.
Strict Product Liability:
Defenses:
Contributory negligence is not a defense to a claim under strict product liability, AZ will apportion fault under comparative negligence rules in strict liability and products liability actions as well. Defenses to product liabiltiy include Assumption of the Risk.
Intentional Tort: Product Liability
Defendant will be liable to ANYONE injured by an unsafe product that D intended the harm OR knew to a substantial certainty that the harm was substantially certain to occur. If proven, the tort is most likely battery.
Negligence: Products Liability:
Duty of Care
A duty of care to prevent a foreseeable risk of harm is owed to FORESEEABLE plaintiffs. Because privity with the D is not required, foreseeable P's include users, consumers and bystanders. P's duty is to act as a reasonable person would in like or similar circumstances.
Negligence: Products Liability:
Breach of Duty
Shown by:
A) (1) Negligent conduct of D, leading to (2)Supplying a defective product.
B) Liability of retailers and wholesalers: Difficult to hold them liable for negligence since they can usually satisfy their duty through a cursory inspection (not obviously defective, duty only arises if the defect was obvious and they fail to discover OR defect was known and they sell product anyway.)
Negligence: Products Liability:
Causation
P must show actual and proximate cause. An intermediary's (e.g. wholesaler's) negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary, foreseeable negligence.
Negligence: Products Liability:
Damages
Physical injury or property damages are recoverable. Purely economic injuries are NOT recoverable.
Negligence: Products Liability:
Defenses
Comparative negligence and assumption of the risk
Express Warranty: Misrepresentation
A seller will be liable if he makes an affirmative representation of fact or promise concerning goods that becomes PART OF THE BASIS OF THE BARGAIN and does not live up to it.
Implied Warranties of Merchantability and Fitness
Implied in every sale of goods:
1) Seller will be liable if goods are not of AVERAGE ACCEPTABLE QUALITY and not generally fit for ORDINARY PURPOSE for which such goods are used.
2) Implied warranty of fitness for a particular purpose: Seller will be liable if the goods are unfit for their intended purpose, and seller knows or has reason to know that particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods.
General Considerations:
Vicarious Liability: Respondeat Superior
Employer liable for the tortious acts of her employee which occurs in the scope of her employment. Employer's vicarious liability does not require that the employer authorize either explicitly or implicitly the employee's tortious conduct. Intentional torts are usually NOT within the scope of employment. An exception to the intentional tort exclusion is when an employee was FURTHERING THE BUSINESS of the employer (e.g. bouncer who commits battery while outside employer's nightclub)
General Considerations:
Multiple Defendants
Contribution: Allows D who has paid more than HIS share of damages to seek recovery from the other jointly liable parties for the excess. In AZ, comparative contribution, which requires that Ds split the judgment according to relative fault.
General Considerations:
Indemnity
Allows shifting loss between or among tortfeasors. Allows one D who is less culpable than another to recover full amount of P's judgment against him.