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139 Cards in this Set
- Front
- Back
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Hypersensitivity of a P in intentional torts
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Should be ignored.
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Incapacity defenses in intentional torts
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There are no incapacity defenses in intentional torts.
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Battery
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1) Harmful or Offensive Contact
2) With the P's person *Offensive: Not permitted by the normal person *Includes anything P is holding or touching (half woman half horse). *indirect conduct as well (I poison your lunch) |
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Assault
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1)Places P in apprehension
2) Of an immediate battery. *Apprehension: Knowledge (David and Goliath) *Words are not enough *Unloaded gun problem (Put yourself in P's shoes) |
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False Imprisonment
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1) An act of restraint
2) Confinement of P in a bounded area. *Threats can restrain you. *There must be no reasonable means of escape (Clue) *An omission can be a restraint (flight attendants leave) *P has to know of the restraint OR be harmed by it. (lock roommate into the room) |
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Intentional Infliction of Emotional Distress
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1) D engages in outrageous conduct
2) P suffers severe distress. *Outrageous conduct - "exceeds all bounds of decency tolerated in a civilized society." (NY Severed head) *Mere insults are not outrageous. *Conduct is not outrageous when exploit P known weakness (snake joke) *Patricia was "mildly annoyed* is not outrageous. |
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Hallmarks of outrageousness for IIED
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1. continuous/repetitive conduct
2. D is a common carrier or inn keeper. (Jetblue and Marriott) 3. P is a member of a fragile class (young children, elderly, pregnant women) |
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Trespass to land.
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1) Physical invasion
2) Of land * Mistake is no defense *Can trespass by throwing tangible objects onto the land. *Intangible items are not a trespass (flashlight) *Land includes the air above and soil below. |
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Trespass to chattels & conversion
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Vandalism and theft
*Smaller harm trespass to chattels *Larger harm conversion *Remedy of conversion is the full value of the chattel. |
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Defense of Consent
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P must have legal capacity.
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Intentional Infliction of Emotional Distress
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1) D engages in outrageous conduct
2) P suffers severe distress. *Outrageous conduct - "exceeds all bounds of decency tolerated in a civilized society." (NY Severed head) *Mere insults are not outrageous. *Conduct is outrageous when exploit P known weakness (snake joke) *Patricia was "mildly annoyed* is not outrageous. |
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Hallmarks of outrageousness for IIED
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1. continuous/repetitive conduct
2. D is a common carrier or inn keeper. (Jetblue and Marriott) 3. P is a member of a fragile class (young children, elderly, pregnant women) |
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Trespass to land.
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1) Physical invasion
2) Of land * Mistake is no defense *Can trespass by throwing tangible objects onto the land. *Intangible items are not a trespass (flashlight) *Land includes the air above and soil below. |
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Trespass to chattels & conversion
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Vandalism and theft
*Smaller harm trespass to chattels *Larger harm conversion *Remedy of conversion is the full value of the chattel. *conversion - if you break it you buy it. |
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Defense (Consent)
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P must have legal capacity.
*children CAN consent to age appropriate invasions. * Consent by customer (football) *D's reasonable interpretation of P's objective conduct (date kiss) *Goings on in P's head doesn't matter. *All consent has a scope that can be exceeded. (Super bowl, insulation) |
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Self Defense, Defense of others, Defense of Property (intentional tort)
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1. acted with proper timing. (no revenge)
2. D must show reasonable belief that interference was going to happen. * A reasonable mistake is okay. *Force has to be proportionate. * You can't use deadly force to protect property (including traps). |
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Public Necessity (property torts)
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When a D interferes with P's property in an emergency to protect the public as a whole, or a significant group of people.
*killed Lassie *A complete defense. |
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Private Necessity
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D invades P's property in an emergency to protect an interest of his own.
1) D has to pay for actual harm. 2) However, D is never liable for nominal or punitive damages 3) As long as the emergency continues a private necessity D may remain on P's land. *Land plane in corn *Mini power of eminent domain. |
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Defamation
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1) Make defamatory statement specifically identifying the P.
*not mere name calling, *affects negatively on a trait of character *if the listener would assume that speaker has a factual basis. *P must be alive. 2) Publication: It is sufficient to share the statement with one other person than P. *negligent publication counts 3) Damages, maybe. *libel: you don't need to ask for damages (it helps), *slander not per se: need proof of ECONOMIC loss. *slander per se: no need to prove damages if 1) Statement relating to business or profession. 2) statement that P has committed a crime of moral turpitude. 3) A statement imputed unchastity to a woman (not a man). 4) A statement that P suffers from a loathsome disease (leprosy and venereal disease). |
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Defenses to Defamation
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1) Consent.
2) Truth. (D bares burden) 3) Privilege. Absolute privilege: a) spouses communicating w/ each other cannot be liable. b) Officers of the 3 branches of gov't in the conduct of their official duties cannot be liable. (lawyers and witnesses) Qualified privilege (candor): *Statements made for references (employee, tenant) *Credit reporting *Statements made to police investigating a crime. *D must be acting in good faith. *things must be w/in scope |
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Privacy Claims
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1) appropriation: D is going to use P's name or picture for commercial purpose. Cereal puts tiger woods w/out asking. *newsworthy limitation.
2) intrusion: invasion of P's seclusion in a way objectionable to an average person. Wiretapping. *P must be in an excluded pla ce where legitimate expectation of privacy. *No trespass is required. 3) False Light: Widespread dissemination of a material misrepresentation that would be objectionable to average person. Distinguished from defamation because have to tell a lot. *Material misrepresentation is broader than defamation. (mischaracterizing someone's beliefs) *Damages for the insult. *it's NOT an intentional tort. 4) Disclosure: Widespread dissemination of confidential information that would be objectionable to the average person. *Exception is newsworthiness. (Dick Chaney's medical records.) |
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Defense to Privacy Claims
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1. Consent
2. Defamation privileges (available in false light and disclosure) |
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Negligence
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1. Duty
2. Breach of duty 3. Causation 4. Damages |
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Duty (Negligence)
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2 Parts:
1) We owe a duty to foreseeable victims and we don't owe a duty to unforeseeable victims. Unforeseeable victims always lose. (Palsgraf "if I shove him hard, the guy I shove, domino affect, maybe me." She was not in the "Zone of Danger") EXCEPTION: Rescuers are not barred even when they are very far away. 2) How much care are we expected to exercise. You owe the amount of a hypothetical reasonably prudent person acting under similar circumstances (lives in the juries head, is everybody and nobody, always very careful, wears a plastic pocket protector. It is the same for EVERYONE and kinda harsh). EXCEPTION: If D has superior knowledge, then D is reasonably prudent person w/ superior knowledge. If D has different physical characteristics, then it's a reasonably prudent person who is blind. SPECIAL DUTY STANDARDS *Child *Professional *Land Occupiers |
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Special Duty Standards of Care (Child)
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Child: Children under 4 are legally incapable of negligence. 4-18 the care of a hypothetical child of similar age, experience, and intelligence, acting under similar circumstances. (extremely subjective)
EXCEPTION: When a child is engaged in an adult activity you use normal reasonably prudent standard (operating a vehicle). |
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Special Duty Standards of Care (Professionals)
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Professionals: Any individual providing a skill with a license (Dr.). A professional owes the care of an average member of that profession who practices in a similar community (primary care is geographical, specialist is other specialist). (The custom sets the standard of care)
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Special Duty Standards of Care (Land Occupiers)
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Land occupiers: 2 types of injuries 1) affirmative activities
2) conditions 1) undiscovered trespasser: owed no duty of care regardless of how he gets hurt. 2) discovered trespasser (anticipated). Those who you might not be aware of but there is reason to expect them. Affirmative care you owe is reasonably prudent standard of care. Conditional care: condition is artificial, highly dangerous, concealed or hidden, that D knew about in advance (no duty to inspect). (a known man made death trap) 3) Licensee: Social Guest. Reasonably prudent person standard normally. Condition has to be concealed from licensee, landowner had to know in advance. All known traps on the land. 4) Invitee: Customers of a business. Activities - reasonably prudent person. Conditions - condition must be concealed from invitee and land occupier knew about or could have discovered through reasonable inspection. A duty to protect from all reasonably knowable traps on the land. *firefighters and police officers - no right of recovery at all if they are injured by risk incident to their job. * Child trespassers are given a more generous standard of care. A child injured by an artificial care is entitled to reasonably prudent person care. Would you expect children to trespass? If there is something attractive on your land, you must take that into account. *Whenever a land occupier owes a duty regarding a dangerous condition, that occupier can fulfill the duty by correcting the hazard, OR by giving a warning. |
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Statutory Standards of Care (borrow statute)
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In order to borrow a statute
1) member of the class of persons that that statute is trying to protect 2) accident that occurred is of a type which the statute is trying to prevent. (Class of person, class of risk) (Pot smoker blows up apartment, fails test) When a statute can't be borrowed, go under reasonably prudent standard. EXCEPTION *Where statutory compliance would have been more dangerous, you shouldn't adopt the statute. *If compliance was impossible under circumstances don't borrow. (heart attack at red light) |
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Affirmative Duties
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There is no duty to act affirmatively. No duty to rescue.
EXCEPTIONS *If D caused the peril. *If D has a preexisting relationship. *If D is a common carrier or inn keeper. *Duty to rescue Business invitees *Duty is one of "reasonableness" *If you choose to rescue and screw up, you can be liable for carelessness. |
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Negligent Infliction of Emotional Distress
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Negligent defendant and NO trauma to the body. P must show:
1) He was in a zone of physical danger. (near miss) 2) Experienced subsequent physical manifestations of that distress. Bystander claim: D has to demonstrate 1) near in space 2) near in time 3) near in relationship. |
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Breach
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P has to identify w/ specificity what the D did wrong.
*When duty is specific, breach analysis is straight forward. (Say a lot about duty, a little about breach) |
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Res Ipsa loquitur (Breach)
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1) P has to show accident which occurred is of a type which doesn't NORMALLY occur unless negligence.
2) This type of accident is normally due to the negligence of someone in D's position. *A res ipsa case doesn't guarantee victory but saves P from a directed verdict. |
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Causation
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1. Factual Cause: Linkage between breach and injury. "But for" test. D will say "Even if"
2. Proximate Cause: foreseeability |
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Merged Causes (Causation):
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Where the breach capable of causing the harm all by itself. "But for" doesn't work. Substantial factor test instead.
(2 fires burn down one house) |
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Unascertainable Causes (Causation):
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2 D's and only 1 caused it. We shift B of P to D's. If neither of them can prove they didn't do it, they are both liable.
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Proximate Cause (fairness)
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P must demonstrate that liability would be fair because what happened was foreseeable (yard stick). 1 and 500 cases where this matters. (D T-boned a car in the intersection full of dynamite and killed 100 people.)
1. direct cause has to be freakish and bizarre. 2. indirect cause - Breach, then something happens in the middle, harm. 4 examples of indirect cause cases where courts hold outcome is foreseeable. 1) intervening medical negligence 2) intervening negligent rescue 3) intervening protection or reaction forces (stampeding people trample) 4) subsequent disease or accident. *not on the list? Look at the breach and look at the end of the story. If it is what you were worried about, hold the D liable. |
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Damage
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Eggshell skull: You take your P as you find them.
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Defenses to negligence
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comparative fault: P failed to exercise the relevant degree of care for his own safety. P's recovery is reduced in accordance with his percentage of the fault.
Pure comparative fault: P always recovers something. Modified/Partial comparative fault: Any case where P is more than 50% of the blame, P gets nothing. |
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Strict Liability (animals)
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1. Domesticated animals (dogs): Not strictly liable UNLESS you have knowledge of your dogs vicious propensities. (Dog has previously bitten someone).
2. Trespassing Cattle: Strict liability. 3. Wild animals: If you keep a wild animal you will be strictly liable. |
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Strict Liability (ultra hazardous)
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1. Cannot be made reasonably safe.
2. Imposes a severe risk of harm (catastrophe). 3. Uncommon in the community. *dynamite, chemical substances, nuclear energy |
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Strict Liability (products)
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Look at the call of the question (not all products are strict liability).
1. D must be a merchant (someone who deals in goods of this type, merchant lessors, D doesn't have to be the merchant that P dealt with directly). 2. P must demonstrate that the product is defective. (manufacturing defect if it differs from others on assembly line making it more dangerous, design defective if there is literally another way to build it. 1) P has to show that that alt. design is safer 2) alt design is economical 3) alt. design is practical. If 1-3 are valid, every merchant will be strictly liable for selling it. Product is defective if there is no warning if it has residual risk that cannot be physically eliminated and consumer would not be aware. (Warning has to be effective, but a warning does not eliminate the need to design the most effective product) 3. Product has not been altered. Presumption that this has been satisfied if moved in ordinary chains of distribution. 4. P must be making a foreseeable use of the product (standing on chairs is foreseeable). |
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Comparative Responsibility (products)
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Same as comparative negligence. Result in a percentage reduction in recovery.
EXCEPTION Trespassers will not be able to recover from animals. |
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Nuisance
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If your ability to use and enjoy your land has been interfered with to an unreasonable degree. D may be acting intentionally, negligently, or non-faulty, but there is still a nuisance if degree of interference is subjectively unreasonable. There usually is no right answer.
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Vicarious Liability
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The D is not only going after the tortfeasor BUT also the 2nd additional D. All vicarious liabiliy flow from a relationship:
1) employer/employee - w/in scope of employment. Respondeat Superior. *intentional torts are outside scope of employment. EXCEPTIONS If the job entails the use of physical force (night club bouncer). If the job creates friction (collection agent) 2) Hiring partner/Independent contractors: Independent contractors not liable. EXCEPTIONS a land occupier is liable if contractor causes harm to invitee. 3) Automobile owner/Automobile Driver: Typically owner not liable for action of the driver. EXCEPTION If I lend it to you to do an errand for me, consequently you will be vicariously liable. 4) Parent/Kid: Parents are not vicariously liable for torts of their children. Vicarious liability is a last resort, is there anything he did that would allow me to find him negligent. (Leaving a loaded gun near a kid) |
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Co-defendant rights
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Modern view: Percentage fault to the 3 D's. If one D pays for all, the other D's have to get the money back from the D.
Indemnification: Get all your money back. Examples: Vicariously liable, he can get indemnification from actual tortfeasor. Any non-manufacturer who is held strictly liable from a product can get indemnification from the manufacturer. |
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Loss of Consortium
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P is married. Recovery is based on underlying claim. Allow recovery:
1) loss of services 2) loss of society (companionship) 3) loss of sex |
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Trespass
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1. an act of physical invasion of the P's real property by D
2. INTENT to bring about the physical invasion. 3. Causation |
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Transferred intent
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D intends to commit a tort against one person but instead
1. commits a different tort against that person 2. commits the same tort as intended but against a different person OR 3. commits a different tort against a different person THE INTENT IS TRANSFERRED. |
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NEID
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D breaches a duty to avoid negligent infliction of emotional distress when he creates a foreseeable risk of physical injury to the P through causing a threat of physical impact that leads to emotional distress. Damages are only recovery if there is a physical injury. If distress is caused by threat of physical impact, she must have been w/in the zone of danger.
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False light
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1. publication
2. the "false light" must be objectionable to a reasonable person in same circumstances. |
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Implied Assumption of the Risk
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1. know of the risk
2. voluntarily choose to encounter it. *complete defense in contributory jurisdictions. |
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Professional Negligence
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A professional is required to possess and exercise the knowledge and skill of a member of the profession in good standing in similar localities.
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Assumption of the Risk and products liability
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Assumption of the risk is a valid defense to a products liability action based on strict liability.
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For a duty created by a criminal statute to replace a more general duty of care
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1) He is in a class intended to be protected by the statute
2) the statute was designed to prevent the type of harm suffered 3) the statutory standards are clearly defined. |
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Pure comparative negligence where the P was more at fault than the D.
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P may still recover damages if P's damages were that much greater than D's.
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Duty to a social guest/ licensee
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The owner has a duty to warn of a dangerous known condition that creates an unreasonable risk of harm and unlikely to be discovered by the licensee.
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Defamation
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1. defamatory language on the part of the D.
2. the language must be "of or concerning" the P 3. publication of the defamatory language to the 3rd person. 4. damages the reputation. Slander per se: about business, trade, or profession. |
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Abnormally dangerous activity but injury not arising from the propensity
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The strict duty is limited to dangers that would be anticipated from the activity involved.
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An intermediaries failure to discover a product defect
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Is not a superceding cause.
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Parents liability for children's behavior
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At common law parents are not vicariously liable for the torts of their child. Parents can be liable for not excercising due care so if they know the child is violent...
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Battery to the deceased
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Actions for battery do no expire on the victim's death.
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Intrusion into P's seclusion
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An act of intruding on the seclusion of P in her private matters AND intrusion is objectionable to a reasonable person.
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Last Clear Chance
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P's rebuttal to the defense of contributory negligence.
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Joint and Several Liability
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Under J and S each tortfeasor is liable to the P for the entire damage incurred.
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PRIMA FACIE BATTERY
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1. INTENTIONAL ACT
2. HARMFUL OR OFFENSIVE CONTACT WITH P'S PERSON |
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PRIMA FACIE ASSAULT
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1. INTENTIONAL ACT
2. REASONABLE APPREHENSION OF AN IMMEDIATE HARMFUL OR OFFENSIVE CONTACT |
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PRIMA FACIE FALSE IMPRISONMENT
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1. AN INTENTIONAL ACT
2. CONFINING P IN A BOUNDED AREA. |
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PRIMA FACIE IIED
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1. INTENTIONAL AND OUTRAGEOUS CONDUCT
2. SEVERE EMOTIONAL DISTRESS |
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TRESPASS TO LAND
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1. INTENTIONAL ACT
2. PHYSICAL INVASION TO P'S LAND |
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TRESPASS TO CHATTELS
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1. INTENTIONAL ACT
2. CAUSING DAMAGE TO P'S PROPERTY |
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DEFENSES TO INTENTIONAL TORTS
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1) CONSENT
2) PRIVILEGE - SELF-DEFENSE, DEFENSE OF OTHERS, DEFENSE OF PROPERTY. REASONABLE BELIEF THAT TORT IS ABOUT TO BE COMMITTED ON__________(D, 3RD PERSON, PROPERTY. DID D USE THE PROPER AMOUNT OF FORCE? NECESSITY: PUBLIC AND PRIVATE NECESSITY AVAILABLE ONLY FOR PROPERTY TORTS. |
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PRIMA FACIE CASE FOR DEFAMATION
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1) DEFAMATORY STATEMENT ABOUT P
2) PUBLICATION 3) INJURY TO REPUTATION (PRESUMED IF LIBEL PER SE OR SLANDER W/IN 4 CATEGORIES) OR MONEY INJURY FOR NORMAL SLANDER. |
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PRIVACY
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1) APPROPRIATION OF P'S NAME OR PICTURE FOR D'S COMMERCIAL ADVANTAGE
2) INTRUSION INTO P'S SECLUSION 3) PUBLICATION OF FACTS PLACING P IN FALSE LIGHT 4) PUBLICATION OF PRIVATE FACTS ABOUT P |
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NEGLIGENCE
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1) DUTY - FORESEEABLE P, STANDARD OF CARE
2) BREACH - DID D MEET STANDARD OF CARE. 3) CAUSATION - ACTUAL CAUSE, PROXIMATE CAUSE. DIRECT OR INDIRECT. 4) DAMAGES DEFENSES: CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK OR COMPARATIVE NEGLIGENCE. |
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STRICT LIABILITY
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1) ABSOLUTE DUTY
2) BREACH 3) CAUSATION *ACTUAL *PROXIMATE 4) DAMAGES STRICT LIABILITY FOR DANGEROUS ANIMALS. STRICT LIABILITY FOR ULTRA-HAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITY. |
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PRODUCTS LIABILITY
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STRICT LIABILITY -
1) DUTY OWED BY COMMERCIAL SUPPLIER 2) BREACH - DEFECTIVE DESIGN, DEFECTIVE MANUFACTURE, FAILURE TO WARN. 3) CAUSATION 4) DAMAGES |
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VICARIOUS LIABILITY
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IF THERE ARE 2 OR MORE DEFENDANTS. RESPONDEAT SUPERIOR 1) EMPLOYER/EMPLOYEE RELATIONSHIP 2) COURSE AND SCOPE OF EMPLOYMENT.
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SPECIAL DAMAGES:
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PROPERTY DAMAGES, MEDICAL EXPENSES, LOST WAGES.
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GENERAL DAMAGES
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PAIN, SUFFERING, LOSS OF ENJOYMENT OF LIFE
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COMPARATIVE FAULT
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NEGLIGENCE SHOULD REDUCE RECOVERY
UTAH LAW REQUIRES THAT COMBINED FAULT OF THE D'S EXCEED THE FAULT OF THE PERSON SEEKING RECOVERY. 50% AT FAULT MEANS YOUR RECOVER NOTHING. |
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SOL
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APPLICABLE SOL IN UTAH IS 4 YEARS.
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PROXIMATE CAUSE
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IF AN OUSIDE FORCE INTERVENED BETWEEN THE D'S ACT AND INJURY, THE CASE IS DIRECT CAUSE, IF AN OUTSIDE FORCE DID INTERVENE, IT'S AND INDIRECT CAUSE.
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PROXIMATE CAUSE AND SUICIDE
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UNLESS DECEDENT WAS DRIVEN INSANE AND SUICIDE WAS THE PRODUCT OF INSANITY, SUICIDE IS CONSIDERED INDEPENDENT, SUPERCEDING CAUSE THAT CUTS OFF LIABILITY.
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DAMAGES IN NEGLIGENCE
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A P IN NEGLIGENCE IS TO BE COMPENSATED FOR ALL PAST, PRESENT, AND FUTURE DAMAGES INCLUDING MEDICAL EXPENSES, LOST EARNINGS, PAIN AND SUFFERING, IMPAIRED EARNING CAPACITY, AND PROPERTY DAMAGE.
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DEFECTIVE DESIGN
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FEASIBLE ALTERNATIVE TEST: WAS THERE A FEASIBLE ALTERNATIVE AT THE TIME OF THE ACCIDENT?
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Prima Facie Case for intentional tort.
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1) Act
2) Intent (specific or general) 3) Causation. |
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Battery
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Harmful or offensive conduct
To P's person Intent Causation Harmful and Offensive judged by reasonable person standard. Implied consent to the ordinary contacts of life. |
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Assault
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An act by D creating a reasonable apprehension in the P
Of immediate harmful or offensive contact to P's person Intent Causation If D has apparent ability to cause a battery, will be enough for reasonable apprehension. |
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False Imprisonment
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An act or omission on the part of D that confines or restrains P
To a bounded area Intent Causation Methods of confinement: physical barrier, physical force, threats of force, failure to release, invalid use of legal authority. Time of confinement is irrelevant. P must know of confinement. No reasonable means of escape. |
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IIED
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An act by D that's extreme and outrageous
Intent or RECKLESS Causation Damages (actual damages are required, doesn't have to be physical) |
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Trespass to Land
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Physical invasion of P's real property
Intent Causation Invasion by person or object airspace and subterranean space Only intent to enter the space, don't need to know who owns it. Anyone in actual or constructive possession may maintain the action. |
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Trespass to Chattels
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interferes w/ P's right to possession
intent causation damages two types: direct damage or depriving. don't need damage to the chattel, show damage to the possessory right. |
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Conversion
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interferes w/ P's right to possession
so serious that D pays full value intent causation P may recover damages or replevin |
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Defenses to intentional torts
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Consent (was it valid, what was the scope)
Self Defense: When a person reasonably believes that she is being or about to be attacked, she may use such force as is reasonably necessary to protect against the injury. There is a modern duty to retreat before using deadly force if it can be done safely UNLESS the actor is in her own home. A reasonable mistake is allowed. One may use proportional force |
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Prima Facie Case for intentional tort.
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1) Act
2) Intent (specific or general) 3) Causation. |
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Battery
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Harmful or offensive conduct
To P's person Intent Causation Harmful and Offensive judged by reasonable person standard. Implied consent to the ordinary contacts of life. |
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Assault
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An act by D creating a reasonable apprehension in the P
Of immediate harmful or offensive contact to P's person Intent Causation If D has apparent ability to cause a battery, will be enough for reasonable apprehension. |
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False Imprisonment
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An act or omission on the part of D that confines or restrains P
To a bounded area Intent Causation Methods of confinement: physical barrier, physical force, threats of force, failure to release, invalid use of legal authority. Time of confinement is irrelevant. P must know of confinement. No reasonable means of escape. |
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IIED
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An act by D that's extreme and outrageous
Intent or RECKLESS Causation Damages (actual damages are required, doesn't have to be physical) |
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Trespass to Land
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Physical invasion of P's real property
Intent Causation Invasion by person or object airspace and subterranean space Only intent to enter the space, don't need to know who owns it. Anyone in actual or constructive possession may maintain the action. |
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Trespass to Chattels
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interferes w/ P's right to possession
intent causation damages two types: direct damage or depriving. don't need damage to the chattel, show damage to the possessory right. |
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Conversion
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interferes w/ P's right to possession
so serious that D pays full value intent causation P may recover damages or replevin |
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Defenses to intentional torts
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Consent (was it valid, what was the scope)
Self Defense: When a person reasonably believes that she is being or about to be attacked, she may use such force as is reasonably necessary to protect against the injury. There is a modern duty to retreat before using deadly force if it can be done safely UNLESS the actor is in her own home. A reasonable mistake is allowed. One may use proportional force |
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Defense of property
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One may use reasonable force to prevent commission of the tort. A request to desist or leave MUST first be made. One may also use force in hot pursuit of another who has tortiously dispossess the owner of chattels.
You don't have this defense against someone w/ privilege (recapturing chattels) Deadly force can only be used when a person, not just property, is threatened. |
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Recapture of chattels
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Force may only be used when in hot pursuit.
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Entry on land to remove chattel
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IF it's on wrongdoers land you can enter.
IF it's on the innocent parties land, you can enter and reclaim. However, liable for any damage. IF it's on the land through the owner's fault, there is no privilege to enter the land. |
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Defamation
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Defamatory language
Of or concerning P Publication thereof by D to a third person Damage to P's reputation. If the defamation is a matter of public concern, two additional elements... falsity fault (P must prove malice in cases against public officials. Only negligence w/ regards to private persons) If a statement of public interest is true, P has no cause of action for defamation. Consider IIED or invasion of privacy. |
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Who is liable in a defamation case?
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Primary publishers are liable to the same extent that the author or speaker is.
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Libel
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Is written or printed publication of defamatory language. P does not need to prove special damages and general damages are presumed.
Radio and TV broadcasts are libel |
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Slander
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Slander is spoken defamation. P must prove special damages, unless Slander Per See.
Slander per se: conduct in business profession loathsome disease crime involving moral turpitude. A woman is unchaste. |
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Fault and damages in defamation
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public official or public figure: actual malice, knowledge of falsity or reckless disregard for truth.
Private person/public concern: Negligence Private person/private matter: No fault as to truth or falsity need to be proved. |
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Absolute privilege to defamation
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remarks made during judicial proceedings, legislators in debate, federal officials, between spouses.
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Qualified Privilege to defamation
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reports of official proceedings. defense of ones actions, property, reputation
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Invasion of right to privacy
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Four kinds of wrongs:
Appropriation: unauthorized use of stuff for commercial advantage Intrusion into seclusion: prying or intruding objectionable to reasonable person. Must be private. False Light: Attributes to P view he does not hold or actions he did not take. objectionable to a reasonable person. Must be publicity. If it's a public interest mater, malice must be proved. Public disclosure of private facts: private info (not public records) objectionable to a reasonable person. EVEN if the statement is TRUE. The right to privacy does not extend to family member, exceed death, not assignable, and not applicable to corporations. |
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Intentional Misrepresentation
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Misrepresentation of a material fact.
When D made the statement she believed it was false Intent to induce action or refrain from action in reliance Causation Justifiable reliance Damages (actual pecuniary loss) |
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Negligent Misrepresentation
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Misrepresentation by D in business or professional capacity
Breach of duty toward P Causation Justifiable reliance Damages |
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Interference w/ business relations
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1) existence of a contractual relationship
2) D's knowledge of relationship 3) intentional interference by D 4) Damages. |
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Malicious prosecution
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criminal proceedings
you lose absence of probable cause improper purpose damages |
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Duty of care
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A duty of care is owed to all foreseeable P's.
A rescuer is foreseeable Prenatal injuries are foreseeable. |
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Standards of care
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Basic - reasonable person
Professionals - member of the P in similar communities. Medical specialists, national standard. Children - like age, education, intelligence, and experience. Subjective test. Common carriers and innkeepers - held to a very high degree of care. Auto passenger - ordinary care emergency situations - must act as a reasonable person would under the same emergency. |
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Duty of possess to those off premises
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No duty to protect from natural conditions on the land. But there is a duty to protect from unreasonably dangerous artificial conditions abutting adjacent land. Also must carry on activities to avoid an unreasonable risk of harm. (Tree branches hitting someone off the property)
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Dramshop act makes bartenders....
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Liable
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Socially acceptable contact
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Is not a battery (like touching the small of a woman's back to keep her from falling)
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Private Nuissance
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Is the substantial and unreasonable interference with another person's use and enjoyment of their property. Severity must outweigh utility.
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Wrongful Pregnancy
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Cannot recover costs for raising the child.
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Defamation of a public figure
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must include falsity and actual malice.
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Conversion doesn't require actual...
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damage to the thing. Just a material breach.
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Attractive Nuissance
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A landowner owes a higher duty to a child. If the child can appreciate the risk, the owner is not liable.
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Bystander recovery
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The person has to have actual injuries themselves.
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Duty of a common carrier
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Is non-delagable to an independent contractor.
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Honeybees
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are a domestic animal and the SOL does not apply.
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If you are joking around and a golf club slips out of your hand
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No battery, you have to intend contact.
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Remarks made by state and federal legislatures
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are privileged in their official capacity.
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Strict liability only where there is an absolute
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duty. Hospitals do not have an absolute duty to protect against dangerous acts of their patients.
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Actual Malice:
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To have serious doubts about what it is you are saying.
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Joint and Several Liability
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When two or more acts combine to cause injury, you can recover all from one party.
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Comparative negligence of three people
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Have to make sure P is less than the combined of the other 2 parties.
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Strict liability of dangerous animals
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Usually liable as long as person did nothing to bring it about. A undiscovered trespasser usually cannot claim.
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Duties to people coming on the property
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Undiscovered Trespasser - None
Discovered/Anticipated Trespasser - Known, man-made, death traps Licensee - All known traps Invitee - All Reasonably Knowable Traps. |
