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162 Cards in this Set
- Front
- Back
Intentional torts to the person
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- Battery
- Assault - False Imprisonment - Intentional Infliction of Emtional Distress |
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Torts to property
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- Trespass to Land
- Trespass to Chattels - Conversion |
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Elements of Battery
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- Harmful or offensive contact
- To plaintiff's person - Intent - Causation |
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Elements of Assault
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- Act by D creating reasonable apprehension (knowledge)
- Of immediate harmful or offensive contact - Intent - Causation |
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Effect of words to create assault
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Words alone are not sufficient; must be coupled with conduct; can negate apprehension
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Elements of False Imprisonment
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- An act/omission by D that confines or restrains
- To a bounded area (no reasonable means of escape known to plaintiff) - Intent - Causation |
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To claim false imprisonment, plaintiff must show
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- Aware of
OR - Suffered conrete harm |
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Elements of Intentional Infliction of Emotional Distress (IIED - a fallback)
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- Act by D amounting to extreme and outrageous conduct
- Intent or Recklessness - Causation AND - Damages: sever emotional distress |
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What's the standard for "Extreme & Outrageous"? What can convert something not normally outrageous?
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Standard: Transcends all bounds of decency.
Convert otherwise non-outragerous: a) conduct continuous/repetitive, b) D as an inkeeper/common carrier liable for "gross insults" c) Plaintiff is a member of a fragile class (child, elderly, etc.) |
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IIED is the only tort to the person that requires
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Damages (severe emotional distree - proof of injury NOT required)
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Causation in bystander cases: 2 ways to state claim...
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1) Standard IIED
2) a) Present when the injury occurred b) Close relative to injured person, and c) D knew facts 1 and 2. |
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Elements of Trespass to Land
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- Physical invasion of plaintiff's real property
- Intent (to enter that particular land) - Causation |
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Trespass of intangible matter (i.e. sound, smell) more likely to give rise to claim of
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Nuisance
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Property re: trespass includes
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Surface, Airspace, and Subterranean space for reasonable distance
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Elements of Trespass to Chattels
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- An act by D that interfers with Plaintiff's right of possession
- Intent - Causation - Damages |
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Elements of Conversion
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- 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 |
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Subject matter of conversion
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Tangible and intangibles reduced to physical form (i.e. promissory note)
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Potential plaintiff's in an action for Conversion
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Anyone with possession or the immediate right to posession
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Remedies for Conversion
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Damages of FMV at time of conversion or possession (replevin)
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Defenses to intentional torts (3)
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1. Consent
2. Self-defense 3. Necessity |
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Two inquiries to be made for consent
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1. Valid
2. Did D stay within the bounds of the consent |
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Implied consent is determined by what standard
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An objective standard; plaintiff's subjective thought is not relevant
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Three questions to ask when dealing with Self-Defense
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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) |
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Self-defense of property and hot pursuit
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May use force in hot pursuit of another who has tortiously dispossed the owner of chattels - viewed as still being committed
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Hot pursuit defense of property defense superseded when
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Actor has a privilege to enter on the land of another b/c of necessity or recapture of chattels
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Defense of necessity is limited to what kind of torts
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Property torts only
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Public Necessity
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Arises when D invades plaintiff's property in an emergency to protect community as a whole or a significant group of people
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Private Necessity
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D ivades plaintiff's property in an emergency to protect an interest of his own
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Private Necessity - liability for damages
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1. Must pay for actual damages caused
2. Immunitiy from nominal/punitive damages |
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Scope of Private Necessity
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As long as emergency continues, D may remain in a position of safety on plaintiff's land
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Elements of Defamation
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- Defamatory language (tending to adversely affect one's reputation; name-calling not sufficient)
- "Of or concerning plaintiff" - Publication - Damage to plaintiff's rep. |
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Two additional elements if defamation involves a matter of Public Concern
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- Falisty
- Fault |
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A statement of opinion is actionable as defemation only if it appears
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To be based on facts and express allegation of those facts would be defamatory
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Defamation by inducement and innuendo
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Plaintiff may plead additional facts to establish defamtory meaning
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Defamation's living person requirement
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Defamation of a deceased person is not actionable
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Group defemation distinguised by size
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- Small: each can allege "of and concerning"
- Large: none can allege |
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Definion & damages for slander?
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Spoken form of defamation. Plaintiff must prove special damages, unless slander per se.
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Definition and damage requirements for libel?
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Written or publication of defamatory language. General damages presumed; no need to prove special damages
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Slander per se categories (4)(i.e. no need to prove special damages)
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1. Adversely reflect on one's conduct in a business/profession
2. One has a loathsome disease 3. One is /was guilty of a criminal involving moral turpitude OR 4. A woman is unchaste |
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If defamation involves *matter of public concern* must also prove? If no action for defamation, what's an alternative tort to sue by?
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Must prove: a) Falsity of statement & b) fault on the part of D.
IIED or invasion of right of privacy (unless plaintiff is a public figure) |
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In a defamation action on a matter of public concern, what's the standard to determine if D is a public figure?
What's the fault standard for public figures? |
Public Figure = Someone who achieved pervasive fame or notoriety or by voluntary assuming a role in a particular public controversy.
Standard of Fault = Malice (Knowledge of falsity or reckless disregard for truth) |
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Defenses to defamation
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1. Consent
2. Truth (in constitutional defamation cases - not common law cases) |
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What are the types of privileges that are a defense to defamation?
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Absolute (never lost): remarks made during judicial proceedings, by legislators in debate, by federal executive officials in "compelled" broadcasts, between spouses
Qualified (lost of abused): reports of official proceedings, statements in the interest of publisher and/or recipient |
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Invasion of Right to Privacy (4) types
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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 |
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Appropriation of Plaintiff's picture of name
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Unauthorized use for defendant's commercial advantage, generally limited to advertisements and promotions
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Intrusion upon plaintiff's affairs or seclusion
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Must be private affiars; Prying or intruding that would be objectionable to a reasonable person
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Publication of facts placing plaintiff in false light
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Attributing views to plaintiff he doesn't hold or actions he didn't take; must be objectionable to a reasonable person
For liability must have publicity |
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Public disclosure of private facts about plaintiff
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Accurate but confidential information (i.e. medical records); widespread dissemination about plaintiff that would be objectionable to the average person; newsworthy exception
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Duty of care extends to? For unforeseen plaintiffs?
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All foreseeable plaintiffs under the circumstances (including rescuers, viable fetuses, and intended beneficiaries of economic transactions)
If an unforeseen plaintiff is also harmed, then 2 rules: 1) Foreseeable Zone of Danger (reasonable person would have foreseen injury to her under the circumstances) 2) Everyone is Foreseeable - Applies to everyone, so long as D breached duty to P1 |
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What is the Basic Standard of Care
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Reasonable person - what the average person would do.
Note: Mental defencies are not taken into account, but physical ones are. |
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Particular standards of care
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- Professionals
- Children - Common Carriers & Innkeepers - Emergency actors |
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Standard of care among professionals:
a) Who are Professionals? b) Standard(s)? |
a) Someone with special occupational skills
b) For regular professional: the knowledge/skill to be a member of the profession/occupation in good standing in similar communities For Specialist: National standard among people in that specialty |
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Standard of care among childen
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Of like age, education, intelligence, and experience; UNLESS engaged in adult activities
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Standard of care among Common Carriers and Innkeepers
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Plaintiff must be a customer; Held to a high degree of care; Liable for slight negligence
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Duty of possessor of land to those off premises
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No duty regarding natural conditions; duty for unreasonably dangerous artifical conditions; duty for trees on land extends to damages off land
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Duty of an owner of land depends on what characteristic of the occupant? List classes of occupant.
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The type of permission, if any, that the occupant has to be on the land
- Trespassers - Infant Trespassers - Licensees - Invitees |
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Undiscovered trespassers
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Always lose
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Discovered or anticipated trespassers
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Care of reasonable person; Known man made death traps
- Concealed - Artifical conditions - Known to the landowner - Risk of death/serious bodily harm |
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Attractive Nuisance Doctrine - infant trespassers must show (4)
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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 |
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A licensee on property is
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A social guest; enters land with permission for his pwn purpose/business
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An invitee enters property how
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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 |
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Duty owed to licensees
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Protect from all known traps
1) Warn of dangerous conditions (natural and artificial) 2) Exercise reasonable care for active operations 3) No duty to inspect or repair |
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Duty owed to invitees
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Protect from all reasonably knowable traps
1) Same as to Licensee, AND 2) Reasonable inspections to discover non-obvious dangerous conditions and make them safe |
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A statute's specific duty may replace the more general common law duty of care if (4)
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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. |
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When to not borrow a staute
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- If compliance would be more dangerous (cross double yellow lines)
- If compliance would not be possible (heart attack while driving) |
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Effect of violation of borrowed statute
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Negligence per se: a conclusive presumption of duty and breach
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Two instances where physical injury not required for NIED
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1. Erroneous report of a relative's death
2. Mishandling of a relative's corpse |
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Elements for Negligent Infliction of Emotional Distress?
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D has duty to avoid causing emotion distress to another, which is breached when D creates a foreseeable risk of physical injury to plaintiff and either:
- causing threat of physical impact OR - causing emotional distress that likely results in physical symptoms (objectively measurable) |
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Zone of Danger requirement for NIED
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General rule: threat must be directed at plaintiff
Exception: If P is outside of zone of danger, can still recover it 1) P and injured party are closely related 2) P was present 3) P observed/perceived injury |
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Main difference in showing between IIED and NIED? Exception?
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NIED requires some physical symptoms from the distress, IIED doesn't.
Except: 1) An erroneous report of a relative's death 2) Mishandling of a relative's corpse |
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Affirmative Duties to Act (3)
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1. Assumption of duty by acting
2. Peril due to D's conduct 3. Special relationship between parties (common carriers, innkeepers) |
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In discussing Breach include
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The facts and the argument - link the action; more specific the duty the less you need to discuss the breach
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Res Ipsa Loquitur - Plaintiff to show (2)
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1. Accident of type not normally to occur unless someone was negligent
2. The negligence is attributable to the D |
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To show negligence attributable to the D in a Res Ipsa claim
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Establish the instrumentality was in D's exclusive control
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Effect of establishing Res Ipsa Loquitur
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No directed verdict for D; but plaintiff may still lose if inference of negligence is rejected
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Grant D's motion for a directed verdict where there is no showing of (2)
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1. Res Ipsa
OR 2. Evidence of some other breach of duty |
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Plaintiff moving fore a directed verdict
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May do so, but will almost always be denied; usually still a question of causation
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Actual Cause (causation in fact). 3 Tests
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- "But for" test
- If several causes bring about injury (Joint causes): substantial factor test - 2 Acts, only one of which caused the injury, but can't tell which one: Alternative causes approach (burden shifts to D to figure out who's fault) |
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Standard for Proximate Cause (legal causation)?
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Liable for harmful results that are the *normal incidents of and within the increased risk caused by his acts*
It's a foreseeability test |
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In proximate cause context, what is a "direct cause" case and how is liability determined?
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Direct cause = uninterrupted chain of events from negligent act --> P's injury.
Liable for all foreseeable harmful results, regardless of unusual manner or timing Not liable for unforeseeable harmful results not within risk created, but most harmful results are foreseeable in direct cause cases. |
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Proximate Cause, Indirect Case:
Liability for Foreseeable Results Caused By Foreseeable Intervening Forces? What are common dependent intervening forces? |
- Caused a dependent intervening force: Almost always liable
Examples: 1) Negligence of rescuers 2) Subsequent med mal 3) Injuries caused by another reacting to D's actions 4) Efforts to protect the person of property one oneself or another 5) Subsequent disease caused by weekend condition 6) Subsequent accident caused by original injury - Independent Intervening Force: Liable if D increased risk of occurrence Examples: 1) Negligent 3d parties 2) Crimes/torts of 3d parties, 3) Acts of God |
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D's liable for foreseeable results caused by unforeseeable intervening forces?
Exception? |
D usually liable, unless intervening force was a crime or intentional tort of a third person
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Unforeseeable results caused by forseeable intervening forces
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D not liable
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Unforeseeable results caused by unforseeable intervening forces
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D not liable
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Punitive damages available where
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D's conduct is "wanton and willfull"
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What is Comparative Negligence, and are the two types?
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Liability assessed based on weighing defendant's percentage negligence against Plaintiffs.
Pure: Allocate liability based on percentage Partial: P can't recover if P's negligence > 50% |
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If/When is strict liability available for:
1) Wild Animals 2) Domestic Animals 3) Trespassers to Land |
1) Always
2) Negligence, unless animal's dangerous propensities are known 3) Trespassers (vicious attack dogs may be intentional tort) |
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Liability for domestiv animals
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Not strict UNLESS knowledge of dangerous propensity
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Types of product defect (3)
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1. Manufacturing defect
2. Desgin defect 3. Inadeqaute warning |
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Manufacturing Defect, need to prove:
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1) Product is different from the other products
2) More dangerous than if it had been made the way it should have 3) Dangerous beyond the expectation of the ordinary consumer, because of the difference |
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Design defect, need to prove:
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There exists a better, hypothectical alternative design that is
- safer - cost neutral - practical |
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Effect of compliance or non-compliance with government safety standards?
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Noncompliance: Establishes defect
Compliance: merely evidence of non-defectiveness |
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Doctrine of Resondeat Superior
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Vicariously liable for tortious acts committed within the scope of employment
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Intentional Torts are usually held not within the scope of employment - 3 exceptions
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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) |
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Vicarious liability for independant contractors
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Generally not liable
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When can principal be held liable for independent contractor?
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1. Engaged in inherently dangerous activity
2. Non-delegable duty 3. Liable for principal's negligence in choosing the contractor |
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Vicarious liability for auto owner of driver
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- Generally not liable,
- Many states: liable for tortuous conduct of immediately family / household members - Some states: Any permissive use - Always liable for negligent entrustment (car owner's negligence in allowing someone unfit to drive) |
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Parent's liability for their children's tortuous conduct
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CL: No liability
Majority: Liable for willful and intentional conduct, upto certain about (e.g. $10,000) Exceptions: 1) If child acting for adult 2) Parent's negligence for allowing child to do something |
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When can intent be transfered?
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1) Commits a different tort against the same person
2) Commits the the intended tort against a different person 3) Different tort against a different person |
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What torts permit transferred intent? What's required for intent to transfer?
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Torts: a) Assault, b) Battery, c) False Imprisonment, d) Trespass to Land, e) Trespass to Chattels
Both the intended tort and the resulting tort must be one of the above torts |
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What are the elements necessary to establish a prima facie case of an intention tort
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1) Act by D
2) Intent 3) Causation |
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What types of acts constitute conversion?
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1) Wrongful Acquisition (theft)
2) Wrongful Transfer 3) Wrongful Detention 4) Substantial change 5) Severe damage 6) misusing chattel |
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When is the defense of express consent to a property tort ineffective?
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1) Mistake that D knew of and took advantage
2) Consent induced by fraud 3) Consent obtained by duress, but only if present threats (not future) |
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When is self-defense available:
a) Attempt escape/retreat b) Initial Aggressor c) Third-party injuries |
a) No need to attempt escape; for deadly force retreat unless unsafe or in home
b) Not available (generally) c) Might extend to third-party injury, unless intentional |
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When can defense of others provide a defense for intentional torts?
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When actor reasonably believes that the other person could have used force to defend herself
Reasonable means that a reasonable mistake of fact is ok |
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What are the general rules for defense of property?
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1) May use *reasonable force* to prevent commission of a tort.
2) Must request desist or leave, unless futile or dangerous 3) Can use force in hot pursuit (tort still ongoing) 4) Once tort is over, so is defense |
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In a claim of defense of property to an intentional tort, what are the modern and common law rules for Reentry onto Land?
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CL: use force to reenter land only when other came into possession tortuously
Modern: No right to self-help, courts provide summary procedures |
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In a claim of defense of property to an intentional tort, what can an owner do to recapture chattels?
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1) When possession began lawfully, can use only peaceful means to recovery
2) When possession was wrongful (e.g. theft) can use force in hot pursuit |
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When is recapturing chattels available as a defense of property?
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1) Timely demand to return, unless futile or dangerous
2) Recover only from wrongdoer or third party who knows or should know it was tortuously obtained 3) No recovery from innocent party |
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When is the privilege of felony arrest available to a Police Officer? When can force be used?
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When: Officer *reasonably believes* a felony has been committed and that actor committed it
Force: *reasonably neccssary* to make the arrest, deadly force only when suspect poses a threat of serious harm |
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When can a private citizen claim a privilege of felony arrest? How much force?
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Arrest: When the felony was in fact committed and citizen must reasonably believe the person committed it
Force: *reasonably neccssary* to make the arrest, deadly force only when suspect poses a threat of serious harm |
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When is there a privilege for misdemeanor arrests? How much force?
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Arrest: Must be a breach of peace and committed in arresting party's presence
Force: Reasonably necessary to make arrest, but no deadly force |
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What is the standard for "of or concerning the plaintiff" in a suit for defamation?
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A reasonable reader/listener/viewre would understand the defamatory statement referred to the plaintiff.
If not plain on its face, P can use extrinsic evidence (called pleading colloquium). |
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What is the standard for publication in actions for defamation? What constitutes a single publication?
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Any communication made intentionally or negligently to someone other than a plaintiff.
CL: every reptition in a separate publication (e.g. magazine, newspaper) was a publication. Modern: Single publication for newspapers/magazines |
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In an action for defamation relating to a matter of public concern, if P is a private party what's the standard of fault?
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P need only prove negligence
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What are the elements for an intentional misrepresentation action (fraud/deceit)?
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1) Misrepresentation of a material fact
2) Scienter - D knew or believes statement was false, or there was no basis for the statement 3) Intent to induce P's action in reliance upon the statement 4) Causation (actual reliance) 5) Justifiable Reliance 6) Damages |
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What are the prima facie elements for Negligent Misrepresentation?
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1) Misrepresentation by D in a *business or professional capacity*
2) Breach of Duty toward P 3) Causation 4) Justifiable Reliance 5) Damages |
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What is the wrongful institution of a legal proceeding called for a criminal or civil proceeding?
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1) Malicious Prosecution (Criminal)
2) Wrongful Civil proceeding (Civil) 3) Abuse of Process (process generally) |
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What are the requirements for Malicious Prosecution?
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1) Institution of criminal proceedings against P (e.g. file complaint)
2) Termination in P's favor 3) Absence of probable cause for prior proceedings 4) Improper purpose 5) Damages |
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What are the requirement for abuse of process?
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1) Wrongful use of process for an ulterior purpose
2) Definite Act or threat against P |
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What are the prima facie elements for Interference with Business Relations? Possible privilege?
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1) Existence of a valid contractual relationship OR valid business expectancy
2) D's knowledge of relationship or expectancy 3) Intentional Interference 4) Damages D may have privilege if *proper attempt to obtain business for it self or protect its interest* especially if just prospective business |
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Standard of Care for Automobile Driver to Guest
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Ordinary case, unless state has statute saying driver is only liable for reckless conduct for nonpaying passenger
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Standard of Care for Bailors
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Gratuitous bailment: of known, dangerous, defects in chattel
For Hire: must inform of defects bailor is aware or should be aware of |
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What duty does a possessor of land have to those off premises?
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No duty for natural conditions
Duty for *unreasonably dangerous artificial conditions or structures* abutting adjacent land In urban areas, owner liable for damage caused by trees on premises (e.g. falling trees) |
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When considering a claim of IIED or NEID, always also consider what else?
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That P can always tack on emotional distress as a damage to another tort that caused physical injury, therefore not needing to prove the particular elements of IIED/NIED
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What are the three ways to prove breach?
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1) Custom or Usage - Not controlling (the entire industry could be negligent)
2) Violation of Statute 3) Res Ipsa Loquitur |
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To what extent is D liable for unforeseeable extent or severity of harm?
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D Liable, takes P as he finds him. "Egg-shell Plaintiff Rule"
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What is contributory negligence?
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Defense raised by D, means negligence on the part of P that contributes to her injury.
Minority of states follow it, it is a complete defense / bar to recovery |
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When is contributory negligence not an available to defense?
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1) Intentional Torts
2) Willful and wanton misconduct 3) Violation of statute that was designed to protection a class o plaintiffs from their incapacity or lack of judgment |
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What "defense" does P have to D's establishment of contributory negligence?
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Last Clear Chance, D still liable if D had the last clear chance to avoid and failed because of his negligence
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What are the three defenses a D can raise against negligence?
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1) Comparative Negligence
2) Contributory Negligence 3) Assumption of the Risk |
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What's the standard for the assumption of the risk defense to negligence?
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- P denied recovery if assumed the risk of ANY damage caused by D. P must have: 1) Known of the risk and 2) voluntarily proceeded
- Can be implied, if the average person would have *clearly appreciated* the risk. - Common carriers & public utilities can't escape liability by warning - Not available for intentional torts |
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What are the elements of strict Liability?
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1) D's Absolute Duty to Make Safe
2) Breach of that Duty 3) Actual / Proximate Cause 4) Damage |
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What type of activity gives rise to an "absolute duty of D's to make safe"? Requirements?
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1) Abnormally Dangerous Activities: a) activity must create a foreseeable risk of *serious harm even when reasonable care is used* and b) activity *not a matter of common usage in the community*
2) Strict Duty by commercial supplier to supply safe products |
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To what extent is reasonable care a defense to strict liability?
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Never!
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What are the 5 theories that a products liability suit can be based on?
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1) Intention Tort
2) Negligence 3) Strict Liability 4) Implied Warranties of Merchantability/Fitness for particular purpose 5) Representation (warranty/misrepresentation) |
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What are 2 ways that a manufacturer will not be liable for defective design?
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1) Scientifically unknowable risks
2) Unavoidably Unsafe Products (e.g. knives). Danger must be apparent and there is no way to make it safer |
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Products Liability Based on Intent, Requirements?
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P shows that
1) D intended the consequences, or 2) Knew they were *substantially certain to occur* No common, usually battery actions |
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Products Liability Based on Intent, who can sue / be sued?
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Sue: No privity, so anyone foreseeable (users, consumers, bystandards)
Be Sued: "Commercial Suppliers" = manufacturers, wholesalers, retailers |
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How can wholesalers or retailers satisfy their duty of care in products liability actions?
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Cursory inspection is all that is required
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Products Liability Based on Strict Liability, who can sue/be used
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Sue: Anyone (users/consumers/bystandards)
Be Sued: Any commercial Suppliers Casual sellers: no strict liability |
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What are the defenses to products liability suits based on strict liability theory?
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- If Contributory Negligence jurisdiction: contributory negligence is no defense
- If Comparative Negligence Jurisdiction: Follow comparative negligence rules - Assumption of Risk = Defense - Disclaimers irrelevant in negligence/strict liability cases for personal/property damage |
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Liability for Tavernkeepers?
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CL: No Liability
Many States: Dramshop Acts or imposition of ordinary negligence based on serving visibly intoxicated person more liquor |
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How is liability divided when:
a) 2+ negligent acts combine to proximately cause indivisible injury b) If injury can be divided among tort feasors c) Ds acting in Concert How have statutes changed this? |
a) Joint & severally liable
b) each D only liable for the identifiable portion c) Joint and several liability, regardless of whether injury is divisible Many tates: No joint liability a) if individual D's fault < P's fault; b) for noneconomic damages. In these cases, liability is just proportionate to D's fault. |
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What is satisfaction and release? What are their legal effects?
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Satisfaction = Recovery of full payment is "satisfaction." Only one satisfaction allowed, until such time P can sue all Ds.
Release = Releases D(s) of liability. CL: Release one joint tort feasor, releases all Ds. Majority of States: the release of all Ds must be explicit in the agreement |
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What is contribution?
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Allows a D who pays more than his share of damages under joint and several liability to have a claim against the other jointly responsible parties for the excess of his apportions responsibility
Calculated: a) Majority: Comparative contribution, based on relative fault. b) Minority: Equal Shares |
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What is Indemnity
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Shifting of the entire loss between or among tort feasors. Available when:
1) By contract 2) Vicarious liability situations 3) Under strict products liability 4) (in some jurisdictions) identifiable difference in degree of fault (e.g. retailer gets indemnified from manufacturer of defective product) |
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What is the government tortuous liable for?
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Federal Government & Most State/Municipal governments have waived tort immunity except for:
1) Assault/Battery 2) False Imprisonment 3) False Arrest 4) Malicious Prosecution 5) Abuse of process 6) Libel and slander 7) Misrepresentation & Deceit 8) Interference with contractual rights |
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In PA, what is the effect of failing to obtain *informed consent* to a surgical procedure?
Requirements for Informed Consent? |
Doctor committed battery.
Informed Consent = Disclose risks that a reasonable person would consider to the decision of whether to undergo that medical treatment |
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In PA, when can a merchant detain a suspected shoplifter? What restrictions/rights/privileges does the merchant have?
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- Merchant must have probable cause that a retail theft has or is occurring to detain a suspected shoplifter.
- Shoplifter can be detained for a reasonable time and reasonable manner in order to: 1) Require suspect to ID himself and afford time to verify ID; 2) determine whether the suspect has unpurchased merchandise in his possession; or 3) inform a peace officer or institute criminal proceedings. When followed, Shoplifter detentions are privileged. |
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In PA, what effect does consent have to parties involved in combat?
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If parties consented to the fight, they can recover actual but not punitive damages
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What is the PA rule for self-defense and requirement of retreat?
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PA follows modern trend: requires retreat before use of *deadly force,* unless in home or work (and assailant is not a co-worker)
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In PA, for an action of negligence against an attorney for malpractice, what is the burden of proof for breach?
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Usual Burden: Increased Risk
For Attorneys: P must show she would have won the underlying action absent attorney's alleged negligence |
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In PA, what are the rules for the minimum age for capacity to be negligent?
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Follows CL rules for criminal conduct:
< 7 = conclusive presumption incapable of negligence < 14 = Rebuttable presumption incapable of negligence > 14 = Capable of negligence General Rule = Subjective elements of child of similar age/intelligence/etc. unless adult activity |
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In PA, what duty does a land owner have to undiscovered trespassers?
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Follows general rule: no duty owed, but owner must not engage in wanton or willful conduct.
Wanton = conduct in reckless disregard of a risk so great as to make the harm highly probable Willful = intentional act of unreasonable character or risk known or so obvious that the actor must be aware of it) |
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In PA, is there a good Samaritan statute? Who does it protect?
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Protects: 1) Medical personnel rendering emergency care/rescue; 2) Nonmedical personnel rendering emergency care/rescue if certified in first-aid; 3) volunteers w/o compensation rendering services (e.g. coach, teacher, etc.).
P must prove gross negligence to prevail |
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What type of negligence does PA follow?
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Partial Comparative Negligence
P can recover if fault is < 50% |
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In PA, what is the status of the "Assumption of Risk" doctrine
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Express: Valid
Implied: Plurality says abolished |
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In PA, does comparative negligence principles apply to wanton or willful misconduct?
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No
(outline doesn't say what does apply, intentional tort?) |
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In PA, what's the liability rule for domestic animals?
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Only negligence, even if owner had previous knowledge of dog's propensity to bite.
Only applies to non-dangerous animals |
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How does PA what are (and are not) defenses to strict liability
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Complete Defenses: 1) asumption of risk; 2) highly reckless conduct; 3) Misuse of product; 4) alteration/substantial change
No defense: P's ordinary negligence (failure to discover/guard against defect) |
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What does PA's dramshop law provide?
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For Liquor Licensee: illegal to sell/furnish/give liquor to a minor or visibly intoxicated person.
For social hosts: Illegal to knowingly give minors alcohol, who subsequently injures herself or third party (must have *actual knowledge*) |