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67 Cards in this Set
- Front
- Back
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what are defenses to false light.
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1. consent:
a. capacity. b. express or implied. c. boundaries. 2. truth. 3. privilege. a. absolute --1.communication between spouses. --2. 3 gov. branches executive, legislative, and judicial. **anything said in judicial and reasonably related will be absolutely privileged** b. qualified = can be lost if abused. --1. references. **old prof. or employee writing recommendation letters** legit bad things are ok but dont want them to write about grudges. ------------if 1st amendment applies-------- 4. burden now shifts to PL to prove the falsity ( truth is not defense at this stage) 5. Pl must prove fault (Dl was at fault) a. intentional b. reckless c. negligent if PL public = must prove intentional or reckless a. intentional = knowingly false or reckless disregard to truth. private= negligence ( breach duty of reasonable care) |
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what are the elements to intentional misrepresentation.
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1. misstatement of facts, NOT opinion.
2. Malice/ scienter = statement made knowingly. a. false or b. reckless disregard to the truth. 3. intent to induce reliance. 4. Justifiable reliance. 5. Causation/ damages. |
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what is the element for interference with business relations.
---------------------------------- what are the defenses. |
1. valid relationship between plaintiff and 3rd person.
(relationship may be existing or prospective) 2. Df knowledge of the relationship. 3. intentional interference. 4. damages. ------------------------ defense 1. privilege persuasion conduct. ( competitor privilege) 2. relationship between the parties |
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what is needed for a negligence claim.
kid kid/ adult activity. diable common carrier/ innkeeper. |
1.
A. duty --foreseeable PL a. rescuer b. viable babies. B. standard of care. ----determine what standard applies. ----determine what the standard is. ***if disable = disable person standard**** ***child = child of like age and mind standard*** ***if child doing adult activity= adult standard*** ***common carrier/ innkeeper will be held liable for the slightest negligence=if customer*** 2. breach 3. causation 4. damages. |
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what is the requirement for land safety.
and defenses. |
1. df is owner or/occupier or privity of land.
2. where did the injury happen on/of liability = on land. 3. injury (assuming on the land) a. unknown trespasser = no duty. b. known trespasser and activity your doing = might be liable. 4. what standard of care was used for activity. ---known trespassers. = responsible for artificial conditions on the land. ---licensee= all dangerous conditions known of. ---invitee = all dangerous condition SHOULD have known (duty to investigate) ---------Defenses---- 1. warning ( was warning adequate) 2. making the condition safe. ***no need to do anything for obvious dangerous condition*** |
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what is the rule for infant trespasser/ attractive nuisance doc.
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1. child must be able to show that it does not understand the risk involved.
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what is assault.
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1. apprehension
2. of immediate battery. ----must be reasonable---- fear and intimidation is not the same as apprehension. |
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HYPO :
I move my hand to my back pocket to get my handkerchief. you believe I'm going for a gun to shoot you. Reasonable> |
NO, not reasonable.
sensitive PL will be gauged on a normal person standard. |
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Hypo:
1. Little C throws wild punches at Mike Tyson. None land, but a number come very close Assault= yes. 2. Dufus points a unloaded gun at LULU, who does not know it is unloaded Assault= yes. |
both scenario creates reasonable apprehension.
a reasonable person would be in apprehension. |
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what comes of theses.
1. Someone is throwing a punch at you from the other side of the room. Assault 2. Doofus threatens to punch you in the nose if you dont promise him a job. 3. Same as the above and except he is shaking his fist under you chin while speaking. 4. doofus shakes his fist under you nose and say: if you werent my best friend, i'd clobber you. |
1. no = not immediate.
2. no = something in the future= not immediate. 3. yes = theses are words coupled with conduct. 4. no = words are unduing the conduct of and immediatcy. |
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what is the rule for false imprisonment.
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1. sufficient act of restraint
a. 1. threat is enough (no need for actual application of force) b. 2. Inaction (doing nothing at all) is enough if there has been 2. bounded a real Pl freedom of movement in all direction is limited. 3. knowledge. a. PL know knows of the confinement at the time. ----exception---- Pl is injured at time of confinement. |
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Hypo:
Df takes Pl across the ocean on his boat. when it arrives in port he refuses her a boat to put her ashore. Fals imprisonment. what is the time limitation. |
Yes.
= short time period will suffice. |
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what is the shop keepers privilege.
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shoplifter detention.
1. reasonable belief as to the theft 2. Reasonable manner of detention ( no deadly force) 3. Detention for reasonable period of time. |
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what is the rule for confinement if there is an out.
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Still confinement if there is no REASONABLE out.
MUST be reasonable. and PL must know of it. |
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Pl is locked in a room but can get out by crawling through a rat infested sewage pipe.
False imprisonment? or Pl can get out of the room by pressing the upper left hand corner of the secret panel in the wall. |
yes, this is not a reasonable means of escape/ exit.
not reasonable if a PL would have not know about. |
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what is the rule for intentional infliction of emotional distress.
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Conduct must be outrageous.
- Conduct must be extreme -there must be damages. -conduct normal but prolonged, kids, elder, pregnant= extreme. |
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HYPO:
1. Doofus insults you. Outrageous? 2. Gangster tried to persuade store owner to buy protection service by harassing customers. outrageous. |
1. no
2. yes, this conduct caused damages. |
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what is the check list for outrageous conduct.
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1. conduct is continuous.
---conduct remains the same, but is continuous. 2. types of Pl ---1. young child, 2. old, 3. pregnant woman, 4. adult with supersensitive df know of. 3. types of Df ---1. common carrier, inkeepers. 4. Pl ---must be a guest or passenger ( in this case) Damages--- physical injury is not required but clear proof of substantial emotional distress is. |
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what is the rule for trespass to land.
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1. physical invasion by Df
2 of PL land. |
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Hypo:
Teen throws ball over PL prop. it sails over never touching the surface. Liability. |
Yes. does not have to touch surface.
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what is the rule for trespass to chattels and conversion.
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some damages = trespass to chattel.
--Pl gets cost of repairs lots of damages= conversion. --Pl gets the full market value of the item. --- 2 types of damages. 1. physical damage. 2. dispossession. |
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Hypo:
Df scratches the leather on Pl briefcase DF destroys PL briefcase. DF takes Pl briefcase for several hours DF takes pL briefcase for ten months. |
1. trespass to chattel
2. Conversion. 3. Trespass to chattel 4. conversion. |
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what are the defenses to conversion or trespass to chattel
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1. consent
2. necessity 3. defense privileges: self defense, defense of others and defense of property. |
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what is needed for consent analysis.
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this is also good for defamation and privacy (same analysis)
1. Pl had capacity to give permission. 2. consent expressly or implied. A. express: valid not = mistake, fraud, coercion. B. implied: custom and usage or Pl conduct. |
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HYPO
Doofus running around right end carrying the ball in a game of touch football, is tagged by a player on the opposite team. HE sues for battery. Result. |
PL loses
Because in the game. 1. Pl gave consent to play in the game. 2. consent implies that persons able to touch him 3. this was implicitly given because no words were used to consent. 4.Determined if they stayed within the boundaries that consent was given. |
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what is the 3 step analysis for defense.
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1. timing requirement.
a. tort df now occurring or just about to occur. ---if tort has been committed = no defense. 2. retreat. a. Gen. no duty to retreat b. duty if deadly force b1. do it safely and b2. no in own house. 3. "proper force" a. protection of person " use deadly force" b. never use deadly force. "bodily injury" never. |
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defense privileges
HYPO: O slugs you, knocking you out, and then walks away. YOu get up and race after him and slug him. Is this ok. |
NO, the tort already occurred.
--no self defense. --------unless " hot pursuit"------ |
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what is needed for necessity analysis.
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1. make sure tort defend against is property tort.
2. determine if public or private necessity. public=benefits many = unlimited liability. no liability. private= benefits little = df will be liable for actual damages cause. -----necessity prevails over defense of property----- |
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Hypo:
A boater ties his boat up at the landowner pier to get off the lake during a storm. The boat bangs against the pier during the storm causing damages. What results. Landowner tries to keep the boater from doing this because he does not want him to trespass on his land. the boater is injured because of this what results. |
1. Not liable for the fort because of the privilege of private necessity but liable for damages to the pier.
2. Necessity prevails over defense of property. |
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what is the requirement for defamation case.
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1. Statement must injure PL reputation.
(statement must be of facts) 2. statement is about Pl (statement must be reasonably understood about PL) 3. Must be communicated to 3rd party. 4. Communication must be intentionally or negligently ( reasonably foreseeable that others would hear) 5. 3rd party must understand the defamatory statement. |
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Hypo:
1. someone calls you a " no good S.O.B defamatory" --what happens--- 2. Someone falsely accuses a lawyer of stealing money from an estate's she is probating. |
1. insults are not defamatory.
2. yes defamatory. because it is hurting the lawyer's reputation. |
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what is the requirement for
1. liable 2. slander 3. slander per se |
1. liable is written = damage is presumed.
2. Slander is spoken= Pl must prove special damages 3. slander per se= damage is presumed. a. business or profession b. crime = morally depraved. c. woman virginity. d. loathsome diseases. |
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what are the defenses to defamation.
Prima facie case. |
1. consent:
a. capacity. b. express or implied. c. boundaries. 2. truth. 3. privilege. a. absolute --1.communication between spouses. --2. 3 gov. branches executive, legislative, and judicial. **anything said in judicial and reasonably related will be absolutely privileged** b. qualified = can be lost if abused. --1. references. **old prof. or employee writing recommendation letters** legit bad things are ok but dont want them to write about grudges. ------------if 1st amendment applies-------- 4. burden now shifts to PL to prove the falsity ( truth is not defense at this stage) 5. Pl must prove fault (Dl was at fault) a. intentional b. reckless c. negligent if PL public = must prove intentional or reckless a. intentional = knowingly false or reckless disregard to truth. private= negligence ( breach duty of reasonable care) |
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what is the rule for Commercial advantage.
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cant do it with PL:
1. name or 2. picture for df commercial advantage. ----limited----- goods and services. |
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Hypo:
Df uses sport's hero's pic in the advertisement for Df goods without getting sport's hero permission actions. -------what if------ i write a story about you which i sell to the newspaper 1k. violations. |
1. Df
name or pic. for df commercial advantage. for goods or services. = actionable. 2. NO- this economic benefit is not for goods or services. = this does not fit. |
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what is the rule for intrusion or seclusion of df private space.
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1. Pl must have expectation of privacy.
2. a normal person would feel highly offended if the privacy was not respected. |
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Hypo:
J kennedy Has paparazzi all over and they have been following her for a month. She often requested that they leave her alone but they just keep on coming. IS this actionable? what if it was a peeping tom zeros in on PL bedroom window with high power Binoculars. Violations? |
No, She has no expectation of privacy on public street.
what the paparazzi are doing a normal person would not find it highly offensive. she could try of IIED but she would fail on that for the same reason. 2. yes, this she would expect to have privacy in her home. a normal person would find it highly offensive for their privacy to be violated in such a way. |
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what is the rule for false light.
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1. wide publication
--not just one person ( 3rd party) defamation. 2. actual malice. (if public interest or figure) A. reckless disregard for the truth. or B. Knowingly false statement. |
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what are defenses to false light.
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1. consent:
a. capacity. b. express or implied. c. boundaries. 2. truth. 3. privilege. a. absolute --1.communication between spouses. --2. 3 gov. branches executive, legislative, and judicial. **anything said in judicial and reasonably related will be absolutely privileged** b. qualified = can be lost if abused. --1. references. **old prof. or employee writing recommendation letters** legit bad things are ok but dont want them to write about grudges. ------------if 1st amendment applies-------- 4. burden now shifts to PL to prove the falsity ( truth is not defense at this stage) 5. Pl must prove fault (Dl was at fault) a. intentional b. reckless c. negligent if PL public = must prove intentional or reckless a. intentional = knowingly false or reckless disregard to truth. private= negligence ( breach duty of reasonable care) |
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what are the elements to intentional misrepresentation.
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1. misstatement of facts, NOT opinion.
2. Malice/ scienter = statement made knowingly. a. false or b. reckless disregard to the truth. 3. intent to induce reliance. 4. Justifiable reliance. 5. Causation/ damages. |
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what is the element for interference with business relations.
---------------------------------- what are the defenses. |
1. valid relationship between plaintiff and 3rd person.
(relationship may be existing or prospective) 2. Df knowledge of the relationship. 3. intentional interference. 4. damages. ------------------------ defense 1. privilege persuasion conduct. ( competitor privilege) 2. relationship between the parties |
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what is needed for a negligence claim.
kid kid/ adult activity. diable common carrier/ innkeeper. |
1.
A. duty --foreseeable PL a. rescuer b. viable babies. B. standard of care. ----determine what standard applies. ----determine what the standard is. ***if disable = disable person standard**** ***child = child of like age and mind standard*** ***if child doing adult activity= adult standard*** ***common carrier/ innkeeper will be held liable for the slightest negligence=if customer*** 2. breach 3. causation 4. damages. |
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what is the requirement for land safety.
and defenses. |
1. df is owner or/occupier or privity of land.
2. where did the injury happen on/of liability = on land. 3. injury (assuming on the land) a. unknown trespasser = no duty. b. known trespasser and activity your doing = might be liable. 4. what standard of care was used for activity. ---known trespassers. = responsible for artificial conditions on the land. ---licensee= all dangerous conditions known of. ---invitee = all dangerous condition SHOULD have known (duty to investigate) ---------Defenses---- 1. warning ( was warning adequate) 2. making the condition safe. ***no need to do anything for obvious dangerous condition*** |
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what is the rule for infant trespasser/ attractive nuisance doc.
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1. child must be able to show that it does not understand the risk involved.
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what is the test for statutory standard requirement.
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1. Pl must fall within the protected class
2. statute must be designed to prevent this kind of harm. |
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what is the effect of non-compliance with the statute.
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Negligence per se
---excuses fro non-compliance--- 1. compliance would be more dangerous. 2. compliance would be impossible. 3. if the standard ask for more = and df doesnt do it-will not establish due care. |
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what is the element to negligent infliction of emotional distress.
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1. Pl suffer physical injury= shock is enough.
2. Pl must be within target zone of Df negligent conduct. (IL) majority = if close relative and see it = recovery = no need for target zone. |
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what is the rule for affirmative duty to act.
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no duty to act unless special relationship.
1. family member. 2. employer/ employee 3. know or should have know it is required. 4. PL is in a bad spot because DF negligence. 5. duty to control 3rd person ( right and ability) |
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what is a breach
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1. Negligence conduct.
2. fail to meet the standard of care. |
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what is the rule for res ipsa loquitur.
element. process |
1. res ipsa loquitur= the thing speaks for itself = negligence.
= no hard evidence but something happened that cause pl injury. ------element-------- 1. inference of negligence = this would usually not happen unless someone was negligent. 2. Negligence Attributable to Df= Evid. connects df with Negligence. ( df had exclusive control) 3. PL not contributory negligence. ------PROcess------ 1. File under res ipsa loquitur 2. Df files for directed verdict. = if survives. 3. jury decides. win or lost based on inference. |
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what is the element for causation.
diff. test. |
1. But for test.
-- but for df negligence, would the injury have occurred. 2. substantial factor test. 3. alternative causes test= Summer v. tyson. (hunting) more than 1 def.caused the accident burden shift to df to prove which one caused the injury. |
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what is the rule for proximate causation.
elements. |
a way for jury to let a negligent df off based on lack of foreseeability.
1. direct cause= Uninterrupted chain of events between negligence act and injury. = liable (foreseeable) 2. Indirect cause case= between the negligent act and injury = intervening force. = not liable. (unforeseeable) exception---- in a indirect cause if intervening force = unforeseeable intentional tort or crime = not liable even though the result was foreseeable. |
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what is the rule for compensation for
1. pl 2. pl property. |
take both as you find it.
egg shell PL = responsible. -----------------------Df------------ has duty to mitigate. collateral source rule = doesnt get factored in. |
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what is the rule for contributory negligence.
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implied contributory negl.
1. knowing contributory negligence. 2 part test= A. one knew of the risk B. one voluntary proceeded it the face of it. 2. unknowing contributory negligence. --no= contributory negligence because df didnt know of the risk involved. -----------------exceptions------------ 1. no other viable option= df is liable 2. emergencies ( pL or other) = df is liable. ---contributory negligence will bar total recovery---- |
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what is the rule for the comparative negligence states.
what can df use to try to get compensation. |
1. pure
--wont recover if your are more negligent than the party that you are seeking money from. 2. comparative --will recover if pure comparative negligence. (even the more negligent party can recover) For bar exam= unless told assume that you are in a pure comparative negligence. --------df use------ last clear chance doctrine. ----contributory negligence should be disregarded-- 1. contributory negligence = yes. 2. comparative negligence= no |
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what is the rule for prima facie case for strict liability.
what are the defenses for strict liability. |
1. duty
2. breach 3.causation. 4. damages ------------------------------------- Defenses for strict liability 1. knowingly contributory Negligence PL= gets nothing. 2. unknowingly contributory negligence. PL= get recovers everything. |
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what is the rule for strict liability for animals.
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Domestic animal = strict liability after 2 instance.
animals with inherent danger = strict liability from inherent dangerous propensity, |
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what is the rule for abnormally dangerous/ ultrahazardous activities.
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strict liability and conduct is irrelevant.
= df was super careful. |
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who can you hold liable for products liability.
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any commercial supplier as long as you can est.
1. df caused the injury must have existed at time the product left that df control. 2. workable theory of ( manufacture/Not Retailers) A. Negligence ( focus on Df) a. design b. manufacture c. warning d. inspection e. res ipsa Pl ( anyone in the zone of danger foreseeable) B. strict liability. " unreasonable dangerous condition" PL = anyone foreseeable zone of risk (also bystander) Df= can be everyone (retailers) |
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strict liability.
warning: elements. |
1. was warning adequate.
2. was there feasible alternative approach for the product. --could defect been cured with little money. 3. was the product the incidental to service. --if so strict liability is unavailable = |
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what can nuisance claim be inserted.
1. tort 2. negl 3. strict liability. |
1. cant come into the nuisance.
2. Private = substantial, unreasonable interference with one's use and enjoyment of the land. 3. public = unreasonable interference with health, safety, property rights of the community. PL---= 1. Pl in either possession or the right to immediate possession 2. public nuisance suit: private only if person has unique damage not to suffer by public. ---------Standard------- conduct must be objectionable to average person. IN short its objective test. |
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vicarious liability.
what is the rule for respondeat superior. |
Gen. rule:
Employers are liable for tort of employees committed within the scope of the employment. ------Usually not liable for independent contractor--- exceptions: a. force is auth. b. friction is generated by this type of employment c. employee is trying to further employer business |
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what is the rule for automobile owner.
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car owner are not usually vicarious liable for the torts of other drivers.
------exceptions------- 1. family car doctrine: household members using the car with permission. 2. permissive use of doctrine: anyone using with permission. ---if any of these = liability--- |
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what is the rule for parent and children.
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parents are not usually liable for the torts of their children.
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what is the rule for
1. joint several liability. 2. contribution and indemnification. 3. indemnification. |
1. joint:
each df will pay for their share. 2. contri: 1. df over paid for their share and is now entitled to get some money back. 3. indemnification: can get all the money back from other df. a. other df is alot more responsible. b. vicarious liability. c. indemnification. |
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what is the rule for survival and wrongful death.
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these are derivatives recoveries.
This means person will not stand in no better position than where the df would have been if he was alive. |
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what is the rule for governmental v. proprietary function.
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Immunity is available for gov. and not available for propriety function.
test: ask if normally a private person would run this function. if so then no gov. protection. |
