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119 Cards in this Set

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Intentional torts to the person
- Battery
- Assault
- False Imprisonment
- Intentional Infliction of Emtional Distress
Torts to property
- Trespass to Land
- Trespass to Chattels
- Conversion
Elements of Battery
- Harmful or offensive contact
- To plaintiff's person
- Intent
- Causation
Elements of Assault
- Act by D creating reasonable apprehension (knowledge)
- Of immediate harmful or offensive contact
- Intent
- Causation
Effect of words to create assault
Words alone are not sufficient; must be coupled with conduct; can negate apprehension
Elements of False Imprisonment
- An act/omission by D that confines or restrains
- To a bounded area (no reasonable means of escape known to plaintiff)
- Intent
- Causation
To claim false imprisonment, plaintiff must show
- Aware of
OR
- Suffered conrete harm
Elements of Intentional Infliction of Emotional Distress (IIED - a fallback)
- Act by D amounting to extreme and outrageous conduct
- Intent or Recklessness
- Causation
AND
- Damages: sever emotional distress
Hallmarks of IIED
- conduct continuous/repetitive
- D as an inkeeper/common carrier
- Plaintiff is a member of a fragile class
IIED is the only tort to the person that requires
Damages (severe emotional distree - proof of injury NOT required)
Causation in bystander cases: plaintiff may recover by showing (3)
1. Present when the injury occurred
2. Close relative to injured person
AND
3. D knew facts 1.&2.
Elements of Trespass to Land
- Physical invasion of plaintiff's real property
- Intent (to enter that particular land)
- Causation
Trespass of intangible matter (i.e. sound, smell) more likely to give rise to claim of
Nuisance
Property re: trespass includes
Surface, Airspace, and Subterranean space for reasonable distance
Elements of Trespass to Chattels
- An act by D that interfers with Plaintiff's right of possession
- Intent
- Causation
- Damages
Elements of Conversion
- Act by D that interfers with plaintiff's right of possession
- Interefence is Serious enough to require D pay full value for chattel
- Intent
- Causation
Subject matter of conversion
Tangible and intangibles reduced to physical form (i.e. promissory note)
Potential plaintiff's in an action for Conversion
Anyone with possession or the immediate right to posession
Remedies for Conversion
Damages of FMV at time of conversion or possession (replevin)
Defenses to intentional torts (3)
1. Consent
2. Self-defense
3. Necessity
Two inquiries to be made for consent
1. Valid
2. Did D stay within the bounds of the consent
Implied consent is determined by what standard
An objective standard; plaintiff's subjective thought is not relevant
Three questions to ask when dealing with Self-Defense
1. Is the threat imminent
2. Does D posses a reasonable belief in the toritous invasion
AND
3. Was the proper amount of force used to counter (rule of symetry)
FLORIDA: Self-defense distinction - Presumption is
A reasonable fear of death or great bodily harm if in a dwelling or automobile
Self-defense of property and hot pursuit
May use force in hot pursuit of another who has tortiously dispossed the owner of chattels - viewed as still being committed
Hot pursuit defense of property defense superseded when
Actor has a privilege to enter on the land of another b/c of necessity or recapture of chattels
Restriction on force to recapture chattels
Limited to recapture from tortfeasor or some third party with knowledge; not from an innocent thrid party
Defense of necessity is limited to what kind of torts
Property torts only
Public Necessity
Arises when D invades plaintiff's property in an emergency to protect community as a whole or a significant group of people
Private Necessity
D ivades plaintiff's property in an emergency to protect an interest of his own
Private Necessity - liability for damages
1. Must pay for actual damages caused
2. Immunitiy from nominal/punitive damages
Scope of Private Necessity
As long as emergency continues, D may remain in a position of safety on plaintiff's land
Elements of Defamation
- Defamtory langugage
- "Of or concerning plaintiff"
- Publication
- Damage to plaintiff's rep.
Two additional elements if defamation involves a matter of Public Concern
- Falisty
- Fault
A statement of opinion is actionable as defemation only if it appears
To be based on facts
Defamation by inducement and innuendo
Plaintiff may plead additional facts to establish defamtory meaning
Defamation's living person requirement
Defamation of a deceased person is not actionable
Group defemation distinguised by size
- Small: each can allege "of and concerning"
- Large: none can allege
Publication requirement for defamation
It is the intent to publish that is the requisite intent
Type of damages for slander
Plaintiff must prove special damages
Type of damages for libel
General damages presumed; no need to prove special damages
Slander per se categories (4)(i.e. no need to prove up special damages)
1. Adversely reflect on one's conduct in a business/profession
2. One has a loathsome diease
3. One is /was guilty of a crim involving moral turpitude
OR
4. A woman is unchaste
No cause of action for defamation against a statement of public interest that is...; consider instead
True; IIED or invasion of right of privacy (unless plaintiff is a public figure)
For defamtion a public figure must also prove
Malice
Define Malice for purposes of defamation claim by a public figure
- Know the statement was false
OR
- Reckless Disregard for falsity
FLORIDA Defamation: Ability to immunize from punitive damages by
Publishing a timely retraction
FLORIDA Defamation: Damages
No presumed damages; every D claim has to prove damages
Statements involving matter of public concern against a private individual only need to show
Negligence regarding falsity
Defenses to defamation
1. Consent
2. Truth (in constitutional defamation cases - not common law cases)
Qualified privilege of speech based on
Circumstances, purpose, or occasion of speech
Invasion of Right to Privacy (4) types
1. Appropriation of Plaintiff's picture of name
2. Intrusion upon plaintiff's affairs or seclusion
3. Publication of facts placing plaintiff in false light
4. Public disclosure of private facts about plaintiff
Appropriation of Plaintiff's picture of name
Unathorized use for defendant's commercial advantage
Intrusion upon plaintiff's affairs or seclusion
Must be private affiars; Prying or intruding that would be objectionable to a reasonable person
Publication of facts placing plaintiff in false light
Attributing views to plaintiff he doesn't hold or actions he didn't take; must be objectionable to a reasonable person
Public disclosure of private facts about plaintiff
Accurate but confidential information (i.e. medical records); widespread dissemination about plaintiff that would be objectionable to the average person; newsworthy exception
Duty of care extends to
All foreseeable plaintiffs under the circumstances (including rescuers, viable fetuses, & intended beneficiaries of economic transactions)
Standard of care
Reasonable person - gotta do as a good as a reasonably prudent person
Particular standards of care
- Professionals
- Children
- Common Carriers & Innkeepers
- Emergency actors
Standard of care among professionals
Custom of profession sets the standard (avoid reasonable)
Standard of care among childen
Of like age, education, intelligence, and experience; UNLESS engaged in adult activities
Standard of care among Common Carriers and Innkeepers
Plaintiff must be a customer; Held to a high degree of care; Liable for slight negligence
Duty of possessor of land to those off premises
No duty regarding natural conditions; duty for unreasonably dangerous artifical conditions; duty for trees on land extends to damages off land
Duty of possessor land to those on premises - status of entrant
- Trespassers
- Infant Trespassers
- Licensees
- Invitees
Undiscovered trespassers
Always lose
Discovered or anticipated trespassers
Care of reasonable person; Known man made death traps
- Concealed
- Artifical conditions
- Known to the landowner
- Risk of death/serious bodily harm
Attractive Nuisance Doctrine - infant trespassers must show (4)
1. Dangerous condition on land owner should know of
2. Owner knows/should children frequent the condition
3. Condition is likely to cause injury
4. Expense of remedy is slight compared with magnitude of risk
A licensee on property is
A social guest; enters land with permission for his pwn purpose/business
An invitee enters property how
In response to invitation from landowner.
- For a purpose connected with the business of the landowner
OR
- As members of the public where land is held open to the public
Duty owed to licensees
Protect from all known traps
Duty owed to invitees
Protect from all reasonably knowable traps
A statute's specific duty may replace the more general common law duty of care if (4)
Class of Person
Class of Risk
1. It provides for a criminal penalty
2. It clearly defines the standard of conduct
3. Plaintiff is within the protected class
AND
4. It was designed to prevent the type of harm suffered by plaintiff.
General fule relating to firefighters and FL distinction
No recovery where person faces inherent danger in job; FL treats them as invitees.
When to not borrow a staute
- If compliance would be more dangerous (cross double yellow lines)
- If compliance would not be possible (heart attack while driving)
Effect of violation of borrowed statute
Negligence per se: a conclusive presumption of duty and breach
Two instances where physical injury not required for NIED
1. Erroneous report of a relative's death
2. Mishandling of a relative's corpse
Negligent Infliction of Emotional Distress
- D creates a foreseeable risk of physical injury to plaintiff
- by threat of physical impact OR emotional distress manifesting physical symptoms (objectively measurable)
Zone of Danger requirement for NIED
The threat must be directed at plaintiff or someone in her immediate presence
Foreseeability factors establishing liability for NIED (3)
1. Closely related parties
2. Plaintiff was present at the scene
OR
3. Plaintiff observed or perceived the injury
Two approaches to NIED physcial impact requirement
1. Zone of Danger
2. Foreseeability Factors
Affirmative Duties to Act (3)
1. Assumption of duty by acting
2. Peril due to D's conduct
3. Special relationship between parties (common carriers, innkeepers)
In discussing Breach include
The facts and the argument - link the action; more specific the duty the less you need to discuss the breach
Res Ipsa Loquitur - Plaintiff to show (2)
1. Accident of type not normally to occur unless someone was negligent
2. The negligence is attributable to the D
To show negligence attributable to the D in a Res Ipsa claim
Establish the instrumentality was in D's exclusive control
Effect of establishing Res Ipsa Loquitur
No directed verdict for D; but plaintiff may still lose if inference of negligence is rejected
Grant D's motion for a directed verdict where there is no showing of (2)
1. Res Ipsa
OR
2. Evidence of some other breach of duty
Plaintiff moving fore a directed verdict
May do so, but will almost always be denied; usually still a question of causation
Actual Cause (causation in fact) tests (3)
- "But for" test
- Joint causes: substantial factor test
- Alternative causes approach
Joint Cause approach
Both parties caused the harm; D's conduct is the cause in fact it it was a substantial factor
Alternative Causes approach
Both parties acted negligently, but only one caused the harm
Proximate Cause (legal causation)
Liabile for all harmful results that foreseeable ("plaintiff will prevail IF it was reasonably foreseeable that...")
Foreseeable results caused by foreseeable intervening forces
D liabile
Common dependant intervening forces
- Negligence of rescuers
- Subsequent med mal
- Injuries caused by another reacting to D's actions
- Efforts to protect the person of property one oneself or another
- Subsequent disease caused by weekend condition
- Subsequent accident caused by original injury
Foreseeable results caused by unforseeable intervening forces
D usually liable
Unforeseeable results caused by forseeable intervening forces
D not liable
Unforeseeable results caused by unforseeable intervening forces
D not liable
Punitive damages available where
D's conduct is "wanton and willfull"
Cap on punitive damages
3x actual damages, up to 1 million (except no limit where D was drunk)
Comparative Negligence
Weigh plaintiff's negligence and reduce damages accordingly; many bar recovery where plaintiff more than 50% liable
FL is a Pure comparative negligence state
Will allow recovery even where plaintiff is over 50% at fault
Exception for FL's pure comparative negligence
Plaintiff over 50% AND drunk
Liability for wild animals
Strict liability
Liability for domestiv animals
Not strict UNLESS knowledge of dangerous propensity
FL liability for domestic animals
Strict liability
Exception to FL's strict liability for domestic animals
- Dog bites on owner's property
AND
1. Victim was a trespasser
OR
2. "Bad Dog" sign displayed
Types of product defect (3)
1. Manufacturing defect
2. Desgin defect
3. Inadeqaute warning
Manufacturing defect
Product emerges different and more dangerous b/c of the difference; must anticipate reasonable misuse
Design defect
There exists a better, hypothectical alternative design that is
- safer
- cost neutral
- practical
Inadequate warning
Danger must not be apparent
Noncompliance with governemnt safety standards
Will establish defect
Compliance with government safety standard
Evidence, but not conclusive, not defective
Unavoidably unsafe products - not liable if
- The danger is apparent
AND
- No safer way to make the same product
Doctrine of Resondeat Superior
Vicariously liable for tortious acts committed within the scope of employment
Intentional Torts are usually held not within the scope of employment - 3 exceptions
1.Force is authorized in the employment (bouncer)
2. Friction is generated by employment (bill collector)
3. The employee is furthering the business of the employer (kicking out rowdy customers)
Vicarious liability for independant contractors
Generally not liable
2 exceptions where principal can be vicariously liable for toritous acts of an independant contractor
1. Engaged in inherently dangerous activity
2. Non-delegable duty
Vicarious liability for auto owner of driver
Generally not liable
FL approach to auto owner's liability for permissive use of vehicle
Owner is vicariously liable for anyone who drives with permission
Parent's liability for their children's toritous conduct
No vicarious liability
Join and Several liability in FL
Abolished; and fault percent can be assigned to absent parties