Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
340 Cards in this Set
- Front
- Back
To establish a prima facie case for intentional tort liability, it is generally necessary to establish what 3 things?
|
The plaintiff must prove act, intent and causation.
|
|
To establish a prima facie case of intentional tort, plaintiff must prove that the act was what?
|
A volitional movement by defendant
|
|
To establish a prima facie case of intentional tort, the intent must be what?
|
Either specific (intended to bring about specific consequences) or general (the actor knows with 'substantial certainty" that these consequences will result).
|
|
In what three situations does the transferred intent doctrine apply?
|
When the defendant 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 3. commits a different tort against a different person
|
|
What happens when the transferred intent doctrins is applicable?
|
In such cases the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.
|
|
Transferred intent may be invoked only if both the tort intended and the tort that results are what?
|
1. Assault 2. Battery 3. False imprisonment 4. trespass to land 5. trespass to chattels
|
|
Transferred intent may be invoked only if both the tort intended and the tort that results are what?
|
1. Assault 2. Battery 3. False imprisonment 4. trespass to land 5. trespass to chattels
|
|
Transferred intent may be invoked only if both the tort intended and the tort that results are what?
|
1. Assault 2. Battery 3. False imprisonment 4. trespass to land 5. trespass to chattels
|
|
Is everyone capable of 'intent'?
|
Yes. Incapacity is not a good defense, young children and mentally incompetent will be liable for their intentional torts
|
|
Is everyone capable of 'intent'?
|
Yes. Incapacity is not a good defense, young children and mentally incompetent will be liable for their intentional torts
|
|
Is everyone capable of 'intent'?
|
Yes. Incapacity is not a good defense, young children and mentally incompetent will be liable for their intentional torts
|
|
Transferred intent may be invoked only if both the tort intended and the tort that results are what?
|
1. Assault 2. Battery 3. False imprisonment 4. trespass to land 5. trespass to chattels
|
|
What is the causation standard for intentional torts?
|
The result must have been legally caused by defendant's act or something set in motion by him. Causation is satisfied if defendant's conduct was a substantial factor in bringing about the injury
|
|
What is the causation standard for intentional torts?
|
The result must have been legally caused by defendant's act or something set in motion by him. Causation is satisfied if defendant's conduct was a substantial factor in bringing about the injury
|
|
What are the elements of a prima facie case of battery?
|
1. Harmful or offensive contact 2. to plaintiff's person 3. intent 4 causation
|
|
Is everyone capable of 'intent'?
|
Yes. Incapacity is not a good defense, young children and mentally incompetent will be liable for their intentional torts
|
|
What are the elements of a prima facie case of battery?
|
1. Harmful or offensive contact 2. to plaintiff's person 3. intent 4 causation
|
|
What is the causation standard for intentional torts?
|
The result must have been legally caused by defendant's act or something set in motion by him. Causation is satisfied if defendant's conduct was a substantial factor in bringing about the injury
|
|
What is the harmful or offensive contact standard?
|
Harmfulness and offensiveness are judged by a reasonable person standard. NOTE: contact is considered offensive only it if has not been consented to but consent will be implied for ordinary contacts of everyday life (bumping on a bus) Contact can be direct or indirect (setting a trap for plaintiff to fall into).
|
|
What are the elements of a prima facie case of battery?
|
1. Harmful or offensive contact 2. to plaintiff's person 3. intent 4 causation
|
|
What is the causation standard for intentional torts?
|
The result must have been legally caused by defendant's act or something set in motion by him. Causation is satisfied if defendant's conduct was a substantial factor in bringing about the injury
|
|
What is the harmful or offensive contact standard?
|
Harmfulness and offensiveness are judged by a reasonable person standard. NOTE: contact is considered offensive only it if has not been consented to but consent will be implied for ordinary contacts of everyday life (bumping on a bus)
|
|
What are the elements of a prima facie case of battery?
|
1. Harmful or offensive contact 2. to plaintiff's person 3. intent 4 causation
|
|
What is the harmful or offensive contact standard?
|
Harmfulness and offensiveness are judged by a reasonable person standard. NOTE: contact is considered offensive only it if has not been consented to but consent will be implied for ordinary contacts of everyday life (bumping on a bus) Contact can be direct or indirect (setting a trap for plaintiff to fall into).
|
|
What is the harmful or offensive contact standard?
|
Harmfulness and offensiveness are judged by a reasonable person standard. NOTE: contact is considered offensive only it if has not been consented to but consent will be implied for ordinary contacts of everyday life (bumping on a bus) Contact can be direct or indirect (setting a trap for plaintiff to fall into).
|
|
For harmful or offensive contact to a person (battery) what is considered plaintiff's person?
|
It includes anything connected to the plaintiff (e.g. clothing or a purse).
|
|
What are the 4 elements of the prima facie case for assault?
|
1. An act by defendant creating a reasonable apprehension in plaintiff 2. Of immediate or harmful or offensive contact to plaintiff's person 3. Intent 4. Causation
|
|
What is sufficient to cause reasonable apprehension?
|
If defendant has the apparent ability to commit a battery. Apprehension should not be confused with fear or intimidation (e.g. a weakling can cause apprehension and thus assault a bully). Words alone are not sufficient but must be coupled with conduct (words can negate reasonable apprehension)
|
|
What are the 4 elements of the prima facie case for false imprisonment?
|
1. an act or omission on the part of the defendant that confines or restrains plailntiff 2. to a bounded area 3. intent 4. causation
|
|
Give 5 sufficient acts of restraint
|
1. physical barriers 2. physical force 3. threats of force 4. failure to release 5. invalid use of legal authority
|
|
Give 2 insufficient acts of confinement or restraint
|
1. moral pressure 2. future threats
|
|
It is (a) how (b) the (c) of confinement is. Plaintiff must (c) of the confinement or be (d) by it.
|
(a) short (b) period (c) know (d) harmed
|
|
What is a bounded area?
|
Freedom of movement must be limited in all directions. There must be no reasonable means of escape known to plaintiff
|
|
What are the four elements of a prima facie case of intentional infliction of emotional distress
|
1. an act by defendant amounting to extreme and outrageous conduct 2. intent or recklessness 3. causation 4. damages - severe emotional distress
|
|
Extreme and outrageous conduct (a) all (b) of (c)
|
(a) transcends (b) bounds (c) decency
|
|
Conduct that is not normally outrageous may become so in what three scenarios?
|
1. it is continuous in nature 2. it is directed toward a certain type of plaintiff 3. it is committed by a certain type of defendant
|
|
How is intentional infliction of emotion distress different from other intentional torts?
|
Recklessness as to the effect of defendant's conduct will satisfy the intent requirement and it is the only intentional tort to the person that requires damages
|
|
What sort of damages are required?
|
Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury is not required. The more outrageous the conduct, the less proof of damages is required.
|
|
When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it, how may the plaintiff recover?
|
by showing either the prima facie case elements of emotional distress or that (i) she was present when the injury occurred (ii) she is a close relative of the injured person and (iii) the defendant knew facts (i) and (ii)
|
|
Exam Tip! Intentional infliction of emotional distress is a (a) tort (b). Thus, if an (c) in your exam question is a (d) that will also allow plaintiff to recover, it should be (e) over this (f)
|
(a) fallback (b) position (c) alternative (d) tort (e) chosen (f) alternative
|
|
What are the 3 elements of the prima facie case for trespass to land?
|
1. physical invasion of plaintiff's real property 2. intent 3 causation
|
|
For a prima facie case of trespass, what nature must the physical invasion be?
|
It may be by a person or object. If intangible matter (vibrations or odor) enters, the plaintiff may have a case for nuisance
|
|
For a prima facie case of trespass, what constitutes real property?
|
Not only the surface, but also airspace and subterranean spaces for a reasonable distance
|
|
For a prima facie case of trespass, what constitutes intent?
|
defendant need intend only to enter on that particular piece of land (he need not know that the land belonged to another)
|
|
Who can be a plaintiff for purposes of trespass?
|
anyone in actual or constructive possession of the land may maintain this action.
|
|
What are the 4 elements of the prima facie case of trespass to chattels?
|
1. an act by defendant that interferes with plaintiff's right of possession in a chattel 2. intent 3. causation 4. damages
|
|
In a prima facie case of trespass to chattels, what are the two types of interference?
|
It may either be an intermeddling (i.e., directly damaging) or a dispossession (depriving plaintiff of his lawful right of possession of the chattel).
|
|
In a prima facie case of trespass to chattels, what sort of damages are necessary?
|
Actual damages - not necessarily to the chattel, but at least to a possessory right - are required
|
|
What are the 4 elements of the prima facie case of conversion?
|
1. An act by defendant that interferes with plaintiff's right of possession in a chattel 2. The interference is so serious that it warrants requiring defendant to pay the chattel's full value 3. intent 4. causation
|
|
In a prima facie case of conversion, give four examples?
|
Can include: 1. wrongful acquisition (theft) 2. wrongful transfer 3. wrongful detention 4 substantially changing/severely damaging or misusing a chattel
|
|
What can be subject to conversion?
|
only tangible personal property and intangibles that have been reduced to physical form (e.g. promissory note) are subject to conversion
|
|
In a prima facie case of conversion, who are potential plaintiffs?
|
Anyone with possession or the immediate right to possession of the chattel may maintain an action for conversion
|
|
In a prima facie case of conversion, what are the remedies?
|
Plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin)
|
|
CHART! Tresspass to chattels vs conversion
|
Chart
|
|
Plaintiff's consent to defendant's conduct is a defense to an intentional tort, but what is the majority view here and what 2 issues does it raise?
|
The majority view is that one cannot consent to a criminal act. Any consent fact pattern raises two inquiries: 1. was there a valid consent (i.e., no fraud) 2. did the defendant stay within the boundaries of the consent
|
|
Defendant is not liable if plaintiff expressly consents to defendant's conduct, what are the 3 exceptions
|
1. mistake will undo express consent if defendant knew of and took advantage of the mistake 2. consent induced by fraud will be invalidated if it goes to an essential matter but not a collateral matter 3. consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation
|
|
Implied Consent. What is the difference between apparent consent and consent implied by law?
|
Apparent consent = that which a reasonable person would infer from custom/usage or plaintiff's conduct Consent implied by law = arises when action is necessary to save a person's life or some other important interest in person or property.
|
|
Who is capable of consent?
|
Individuals without capacity are deemed incapable of consent (e.g., incompetents, drunken persons and very young children).
|
|
Exam Tip! What is important to remember with regard to capacity?
|
Everyone (even a young child) has the capacity to commit a tort but not everyone has the capacity to consent to a tort.
|
|
As a defense to intentional torts and a question involves the defense of self, others, or property what 3 questions should you ask?
|
1. is the privilege available? the tort must now be or about to be committed. Already committed torts to not qualify 2. Is a mistake permissible as to whether the tort being defended against is actually being committed 3. was the proper amount of force used?
|
|
When may you use force to protect yourself?
|
When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury
|
|
When is lethal force during self defense permissible?
|
The modern trend imposes a duty to retreat before using deadly force unless the actor is in her home
|
|
Give an example of when self defense is and is not available
|
May extend to third-party injuries (caused while the actor was defending herself) but actor may liable to a third person if she deliberately injured him in trying to proect herself Self defense is generally not available to the initial aggressor
|
|
For a defense to intentional tort of self defense is mistake allowed?
|
A reasonable mistake as to the existence of the danger is allowed
|
|
How much force may be used?
|
One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.
|
|
When is the defense of others allowed to be used?
|
One may use force to defend another when the actor reasonably belives that the other person could have used force to defend himself
|
|
Is mistake allowed in the defense of others?
|
A reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted
|
|
How much force is allowed in the defense of others?
|
The defender may use as much force as he could have used in self-defense if the injury were threatened to him.
|
|
When is the defense of property available?
|
One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous.
|
|
When may the defense of property not apply?
|
It does not apply once the tort has been committed; however one may use force in hot pursuit of another who has tortiously dispossessed the owner of her chattels because the tort is viewed as still being committed
|
|
Exam Tip! In the defense of property, what role does privilege play?
|
The defense is not available against one with a privilege. Whenever an actor has a privilege to enter on the land because of necessity, etc., that privilege will supersede the privilege of the land possessor to defend her property
|
|
In the defense of property, is mistake allowed?
|
A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is NOT allowed as to whether the entrant has a privilege unless the entrant conducts the entry so as to leada the defendant to reasonably believe it is not privileged (such as refusing to say what the necessity is)
|
|
In the defense of property how much force is allowed?
|
Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm
|
|
Are you allowed to use force to reenter land?
|
Under modern law, there are summary procedures for recovering possession of real property so resorting to self-help is no longer allowed
|
|
Can you recapture chattels by force?
|
When another's possession begain lawfully one may use only peaceful means to recover the chattel. Force may be used to recapture chattel only when in hot pursuit of one who has obtained possession wrongfully (ie. by theft)
|
|
What is first required before the defense of recapture of chattels is available?
|
A timely demand to return the chattel is first required unless clearly futile or dangerous
|
|
Give an example of when one may not use force to recover chattel
|
You cannot use force to recover chattel in the hands of an innocent party. The recapture may only be from a tortfeasor or some third person who knows or should have known that the chattels were tortiously obtained.
|
|
When chattels are located on the land of the wrongdoer, what may the rightful owner do?
|
The owner is privileged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return
|
|
If the chattels are on the land of an innocent party, what may the rightful owner do?
|
The owner may enter and reclaim his chattel at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of chattel and refuses to return it. The chattel owner may be liable for any damage caused by the entry Remember: the chattel owners right of recapture supersedes the landowner's right to defend his property.
|
|
If the chattels are on land of another through the owner's fault (e.g., negligently letting cattle wander) what may the owner do?
|
There exists no privilege to enter onto the land, they may be recovered only through legal process
|
|
Is mistake allowed in recovery of chattel?
|
Generally no mistake regarding defendant's right to recapture chattels or enter on the land is allowed. However, shopkeepers may have a privilege to detain for a reasonable period of time individuals whom they reasonably believe to be in possession of shoplifted goods.
|
|
How much force may be used to recover chattel?
|
Reasonable force, not including force sufficient to cause death or serious bodily harm, may be used to recapture chattels
|
|
Depending on the facts, the actor may have a privilege to make an arrest of a third person. What other privilege does the privilege of arrest afford?
|
It carries with it the privilege to enter another's land for the purpose of effecting the arrest
|
|
What about subsequent misconduct after the arrest?
|
Although the arrest itself may be privileged, the actor may still be liable for subsequent misconduct (e.g., failing to bring the arrested party before a magistrate, unduly detaining the party in jail)
|
|
What if the arrest is for a misdemeanor?
|
It is privileged only if for a breach of peace and if the action takes place in front of defendant
|
|
Is mistake a defense during felony arrest?
|
A police officer may make a reasonable mistake. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred
|
|
CHART! Arrests wihtout a warrant
|
Chart
|
|
When may a person interfere with the real or personal property of another?
|
When it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
|
|
What are the two types of necessity defense?
|
1. Public - when the act is for the public good 2. Private - when the act is soley to benefit a limited number of people. Under private necessity the actor must pay for any injury he causes (unless the act was to benefit the property owner)
|
|
What is important to remember about the necessity defense?
|
It is only a defense to property torts?
|
|
The law of (a) is divided into two parts: the (b) elements and the (c) requirements
|
(a) defamation (b) common law (c) constitutional
|
|
What are the 4 elements of common law defamation?
|
1. defamatory language 2. of or concerning the plaintiff 3. publication thereof by defendant to a third person 4. damage to plaintiff's reputation
|
|
If the defamation involves a matter of public concern, the Constitution requires the plaintiff to prove what two additional elements?
|
1. Falsity of the defamatory language 2. Fault on the part of the defendant
|
|
Exam Tip! What is important to remember here regarding common law defamation?
|
In a common law case, plaintiff does not have to prove falsity as part of the prima facie case. Rather defendant can offer truth of the statement as a defense.
|
|
How is defamatory language defined?
|
As language tending to adversely affect one's reputation.
|
|
Can a statement of opinion be defamatory?
|
A statement of opinion is only actionable it it appears to be based on specific facts and an express allegation of those facts would be defamatory. Name-calling is insufficient
|
|
If a statement is not defamatory on its face, what else might a plaintiff do?
|
Plaintiff may plead additional facts as 'inducement' to establish a defamatory meaning by 'innuendo.'
|
|
Is defamation of a deceased person actionable?
|
No, any living person can be defamed. In a limited sense, a corporation or partnership may be defamed
|
|
What is the standard wit regard to 'of or concerning' the plaintiff?
|
That plaintiff must establish that a reasonable reader, listener or viewer would understand that the defamatory statement referred to plaintiff
|
|
What is pleading colloquium?
|
If a statement does not refer to plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff.
|
|
What if the defamatory statement refers to all members of a small group?
|
Each member may establish that the statement is 'of and concerning' him by alleging that he is a group member
|
|
What if the defamatory statements involves a large group?
|
No member can prove that the statement is 'of and concerning' him
|
|
What if the defamatory statement refers to some members of a small group?
|
Plaintiff can recover if a reasonable person would view the statement as referring to plaintiff
|
|
For the purposes of defamation, how is publication defined?
|
Publication means communication of the defamation to someone other than the plaintiff. Such publication can be made either intentionally or negligently.
|
|
What is the requisite intent required for defamation by publication?
|
It is the intent to publish, not the intent to defame that is the requisite intent.
|
|
What is the 'single publication' rule?
|
Each repetition can be considered a separate publication. However, for magazines, newspapers, etc., most states have adopted a 'single publication' rule uner which all copies are treated as one publication
|
|
What if the defamatory statement about the plaintiff is made only to the plaintiff?
|
As a general rule there is no publication and thus no defamation
|
|
Who may be liable for defamation?
|
Primary publishers are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation). One selling papers or playing tapes is a secondary publisher and is only liable if he knows or should know of the defamatory content
|
|
The type of damages plaintiff must prove depends on the type of defamation involved. In slander cases what must plaintiff prove?
|
That she suffered special damages, that is she must have suffered some pecuniary loss in order to recover anything. But once plaintiff has proved special damages, she may recover general damages as well.
|
|
What is libel? What sort of damages must be proved?
|
The written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed. The minority position distinguishes between libel per se and libel per quod
|
|
What is slander? Plaintiff must prove special damages, unless what happens?
|
Spoken defamation. Plaintiff must prove special damages unless defamation falls within slander per se categories, these are defamatory statements that: 1. adversely reflect on on's conduct in a business or profession 2. one has a loathsome disease 3. one is or was guilty of a crime involving moral turpitude 4. a woman is unchaste
|
|
Are radio and television broadcasts libel? CHART! Common Law Defamation
|
They are treated by most courts today as libel
|
|
When the defamation involves a matter of public concern, in addition to the common law elements what two things must the plaintiff prove?
|
1. falsity of statement 2. fault on the part of the defendant
|
|
In cases where plaintiff is constitutionally required to prove some type of fault, what other burden does plaintiff have?
|
of proving the falsity
|
|
The type of (a) that a plaintiff must prove depends on the plaintiff's (b)
|
(a) fault (b) status
|
|
In defamation cases brought by public officials and public figures what must be proved?
|
Under the New York Times v. Sullivan rule, malice must be proved
|
|
What constitutes a public figure?
|
A person becomes a 'public figure' by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy
|
|
What is the definition of malice?
|
As defined by New York Times v. Sullivan, malice is 1. Knowledge that the statement was false, or 2. Reckless disregard as to whether it was false.
|
|
The definition of malice involves subjective tests, what are the thresholds for defendant's behavior generally?
|
Defendant's spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation
|
|
Under Gertz v. Welch, where a private person is the plaintiff what must be proved? What about where the defendant is negligent?
|
Only negligence regarding the falsity must be proved if the statement involves a matter of public concern (if not a matter of public concern, constitutional restrictions do not apply). Where the defendant is negligent, only 'actual injury' damages are recoverable. However, where malice is found, damages may be presume and punitive damages allowed.
|
|
Exam Tip! What is important to remember with regard to the status of the plaintiff (public figure vs. private persron)?
|
Status is only relevant for degree of fault required; the lement of falsity must be proved regardless of hte status of the plaintiff as long as a matter of public concern is involved (and you should assume that a matter of public concern is involved whenever the plaintiff is a public figure)
|
|
Chartorama! Constitutional Defamation Fault and Damages Rules in Constitutional Defamation Actions
|
Charts
|
|
What are the 4 defenses to defamation?
|
Consent Truth Absolute Privilege Qualified Privilege
|
|
What is considered a complete defense to defamation?
|
Consent, the rules relating to consent to intentional torts apply here Truth, where the plaintiff does not need to prove falsity (the statement is about a purely private matter), defendant may prove truth as a complete defense
|
|
Exam Tip! What is important to remember about falsity here?
|
Falsity and fault are prima facie case elements only in a constitutional defamation case. Plaintiff does not need to prove falsity in a common law defamation case because defamatory statements are presumed to be false; defendant has the burden to prove truth as a defense
|
|
When may defendant be protected by an absolute privilege?
|
For the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in 'compelled' broadcasts and between spouses.
|
|
When might a speaker have a qualified privilege?
|
For the following: reports of official proceedings, statements in the interest of the publisher - defense of one's actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient
|
|
When might the qualified privilege be lost?
|
If the statement is not within the scope of the privilege or it is shown that the speaker acted with malice. Defendant bears the burden of proving that a privilege exists
|
|
What might be considered by the jury on the damages issue in defamation cases?
|
Mitigating factors (no malice, retraction, anger of the speaker provoked by plaintiff) but they are not defenses to liability
|
|
The tort of invasion of right to privacy has what four branches?
|
1. Appropriation of plaintiff's picture or name 2. intrusion on plaintiff's affairs or seclusion 3. publication of facts placing plaintiff in false light 4. public disclosure of private facts about plaintiff
|
|
With regard to appropriation of plaintiff's picture or name, what is it necessary to show?
|
Unauthorized use for defendant's commercial advantage. Liability is generally limited to advertisements or promotions of products or service. Mere economic benefit to the defendant by itself is not sufficient
|
|
With regard to intrusion on plaintiff's affairs or seclusion, what is the standard applied?
|
The act of prying or intruding must be objectionable to a reasonable person. Furthermore, the thing into which there is an intrusion must be 'private' - photographs taken in public places are not actionable
|
|
How is 'false light' defined?
|
It exists where one attributes to plaintiff views he does not hold or actions he did not take. The false light must be something objectionable to a reasonable person under the circumstances. For liability to attach, there must be publicity.
|
|
With regard to invasion of right to privacy, if the matter is in the public interest what else must be proved?
|
Malice on the defendant's part.
|
|
What does public disclosure of private facts about the plaintiff involve?
|
Public disclose of private information about plaintiff (matters of public record are not sufficient). The public disclosure must be objectionable to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true. First amendment limitations probably apply if the matter is of legitimate public interest.
|
|
With regard to any of the four branches of invasion to the right of privacy, what is the causation standard?
|
The invasion must have been proximately caused by defendant's conduct
|
|
Is proof of special damages necessary?
|
Plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages
|
|
What are the defenses to right of privacy actions?
|
Consent and defamation privilege defenses. Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice
|
|
How far does the right of privacy extend?
|
It is a personal right and does not extend to members of a family, does not survive the death of a plaintiff and is not assignable. The right of privacy is not applicable to corporations
|
|
What are the 6 elements to a prima facies case of misrepresentation?
|
1. misrepresentation of a material fact 2. scienter (knew or believed it to be false) 3. intent (to induce plaintiff to act or refrain from acting in reliance upon the misrep) 4. causation (actual reliance) 5. justifiable reliance (generally only justifiable as to a statement of fact, not opinion) 6. damages (actual pecuniary loss)
|
|
What are the defenses to misrepresentation?
|
There are no defenses to intentional misrepresentation
|
|
What are the 5 elements to a prima facie case of negligent misrepresentation?
|
1. misrepresentation by defendant in a business or professional capacity 2. breach of duty 3. causation 4. justifiable reliance 5. damages
|
|
When does negligent misrepresentation generally apply?
|
Usually confined to commercial settings and liability will only attach if reliance by the particular plaintiff could be contemplated
|
|
What are the 4 elements to a prima facie case of interference with business relations?
|
1. existence of a valid contractual relationship between plaintiff and third partry or valid business expectancy of plaintiff 2. defendant's knowledge of the relationship or expectancy 3. intentional interference by defendant inducing a breach or termination of the relationship or expectancy 4. damages
|
|
When may defendant's conduct be privileged
|
Where it is a proper attempt to obtain business for itself or protect its interests
|
|
In what 4 instances is a privilege more likely to be found?
|
If defendant: 1. interfered only with plaintiff's prospective business rather than with existing contracts 2. used commercially acceptable means of persuasion rather than illegal or threatening acts 3. is a competitor of plaintiff seeking the same prospective customers 4. has a financial interest in or responsibility for the third party or is responding to the third party's request for business advice
|
|
What are the 5 elements to a prima facie case of malicious prosecution?
|
1. institution of criminal proceedings against plaintiff (filing a compliant with the police) 2. termination in plaintiff's favor 3. absence of probable cause for prior proceedings 4. improper purpose (something other than bringing a person to justice) 5. damages. NOTE: prosecutors are immune from liability
|
|
Does malicious prosecution apply to civil cases?
|
Most jurisdictions have extended the malicious prosecution action to cover criminal cases
|
|
What are the two elements to a prima facie case of abuse of process?
|
1. wrongful use of process for an ulterior purpose 2. definite act or threat against plaintiff in order to accomplish an ulterior purpose
|
|
What are the 4 elements to the prima facie case of negligence?
|
1. a duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury 2. a breach of that duty by defendant 3. the breach is the actual and proximate cause of plaintiff's injury and 4. damage
|
|
A (a) is owed to all (b). The (c) is determined by the (d)
|
(a) duty of care (b) foreseeable plaintiffs (c) extent of the duty (d) applicable standard of care
|
|
What is the majority view when a defendant breaches a duty to one plaintiff and also causes injury to another (possibly unforseeably?)
|
Cardozo View = The second plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances
|
|
What is the minority view?
|
Andrews View = The second plaintiff may esablish the existence of a duty extending from defendant to her by a showing that defendant has breached a duty owed to the first plaintiff
|
|
When is a rescuer a foreseeable plaintiff? What is the exception?
|
where defendant negligently put himself or a third person in peril (danger invites rescue). Firefighters and police officers may be barred by the 'firefighters rule' from recovering for injuries caused by the risk of a rescue
|
|
What duty of care is owed to the yet to be born? Give an example
|
A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for 'wrongful life' but the parents may recover damages in a 'wrongful birth' or 'wrongful pregnancy' action for any additional medical expenses and for pain and suffering from labor. Ordinary child rearing expenses however cannot be recovered
|
|
Give an example of a forseeable plaintiff in a business setting?
|
A third party for whose benefit a legal or business transaction was made (e.g. beneficiary of a will) may be a foreseeable plaintiff
|
|
What is the basic standard for standard of care?
|
The reasonable person standard is an objective standard. A defendant's mental deficiencies and inexperience are not taken into account (stupidity is no excuse). However the reasonable person is considered to have the same physical characteristics as defendant (but remember, one is expected to know one's physical handicaps and to excercise the care of a person with such knowlege - i.e., a blind person should not fly a plane)
|
|
Give an example of a particular standard of conduct
|
Professionals or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Medical specialists will be held to a national standard of care
|
|
What standard of care is applied to children?
|
Children are held to the standard of a child of like age, education, intelligence and experience. This is a subjective test. A child under 4 is usually without the capacity to be negligent. Children engage in adult activities may be required to conform to an adult standard of care
|
|
Which groups are held to a very high degree of care?
|
Common carriers and innkeepers are held to a very high degree of care, i.e. they are liable for slight negligence
|
|
Exam Tip! For the higher common carrier and inkeeper standard to apply what needs to exist?
|
Plaintiff must be a passenger or a guest
|
|
What duty of is owed to a guest in an automobile?
|
A duty of ordinary care. In the few guest statute states, one is liable for nonpaying passengers only for reckless tortious conduct
|
|
What duties are owed by bailor?
|
For a gratuitous bailment, the bailor must inform of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform of chattel defects of which he is or should be aware
|
|
what is the bailee's standard of care?
|
It depends on who benefits from the bailment: 1. for the sole benefit of the bailor bailment, there is a low standard of care 2. for the sole benefit of the bailee bailment, there is a high standard of care 3. for the mutual benefit bailment, there is an ordinary standard of care
|
|
What is the standard of care in an emergency situation?
|
A defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if it is of defendant's own making
|
|
The extent of the liability of (a) depends on (b) and on the (c)
|
owners and/or occupiers of land (and those in privity with the owner/occupier) (b) where the injury occurred (c) status of the plaintiff
|
|
What is the duty of possessor to those off premises?
|
There is no duty to protect one off the premises from natural conditions on the premises, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on property so as to avoid unreasonable risk of harm to others outside the property
|
|
Exam Tip! What is the duty of possessor in urban areas?
|
The owner/occupier is liable for damage caused off the premises by tress on the premises (e.g. falling branches)
|
|
Generally, in most states what is the duty owed by possessor to those on premises?
|
The duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff's status as trespasser, licensee or invitee
|
|
What duty is owed by possessor to trespassers?
|
No duty is owned to an undiscovered trespasser. As to a discovered or anticipated trespasser, the landowner must: 1. warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm; and 2. use reasonable care in the exercise of 'active operations' on the property (no duty is owed for natural conditions or less dangerous artificial conditions).
|
|
What duty is owed by easement and license holders to trespassers?
|
A duty of reasonable care
|
|
What is the attractive nuisance doctrine?
|
Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property.
|
|
In order to establish the attractive nuisance doctrine, what must be established?
|
Plaintiff must show: 1. a dangerous condition on the land that the owner is or should be aware of 2. the owner knows or should know children frequent the vicinity of the condition 3. the condition is likely to cause injury (i.e. dangerous because of the child's inability to appreciate risk) 4. the expense of remedying the situation is slight compared with the magnitude of the risk
|
|
Exam Tip! For liability to attach pursuant to the attractive nuisance doctrine, what must be remembered about the child's behavior?
|
The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability
|
|
Who is a licensee?
|
One who enters on the land with the possessor's permission for her own purpose or business, rather than for the possessor's benefit
|
|
What duty is owed by a landowner to a licensee?
|
The possessor has a duty to: 1. warn of dangerous conditions (natural or artificial) known to the owner that create an unreasoanble risk of harm to the licensee and that the licensee is unlikely to discover 2. exercise reasonable care in the conduct of active operations on the property. The possessor has no duty to inspect or repair NOTE: Social guests are considered licensees
|
|
Who is an invitee?
|
Invitees enter land in response to an invitation by landowner (i.e. enter as members of the public for a purpose for which the land is held open to the public)
|
|
What duty of care is owed to invitees
|
The landowner or occupier owes the same duties owed to licensees PLUS a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter to make them safe. One will lose invitee status if she exceeds the scope of the invitation.
|
|
What duty is owed to recreational land users?
|
A landowner that permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity
|
|
What are the duties of lessors of realty?
|
Must warn of existing defects of which he is aware or has reason to know and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions.
|
|
What are the duties of lessee of realty?
|
The lessee has a general duty to maintain the premises. If the lessee volunteers to repair and does so negligently, he is liable.
|
|
What are the duties of a vendor of realty?
|
A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.
|
|
When might a statute's specific duty replace the more general duty of care?
|
If: 1. the statute provides for a criminal penalty 2. the statute clearly defines the standard of conduct 3. the plaintiff is within the protected class 4. the statute was designed to prevent the type of harm suffered by plaintiff.
|
|
When might violation of some statutes be excused?
|
Where compliance would cause more danger than violation or where compliance would be beyond defendant's control.
|
|
Under the majority view, what is an unexcused statutory violation?
|
It is negligence per se, i.e., it establishes the first two requirements in the prima facie case - a conclusive presumption of duty and breach of duty. In contrast, even though vioaltion of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care
|
|
CHART! Duty of possessor of land to those on the premises
|
Chart
|
|
When is the duty to avoid causing emotional distress to another breached?
|
When defendant creates a foreseeable risk of physical injury to plaintiff, either by: 1. Causing a threat of physical impact that leads to emotional distress or 2. directly causing severe emotional distress that by itself is likely to result in physical symptoms (limited to cases where a duty arises from a special relationship between plaintiff and defendant).
|
|
If plaintiff's emotional distress is cause by threat of physical impact, what do most courts require?
|
That plaintiff be within a 'zone of danger' to recover for her emotional distress
|
|
Can bystandres recover for distress?
|
Most courts now allow a bystander who is outside the 'zone of danger' to recover for distress from seeing defendant negligently injury another as long as: 1. plaintiff and the person injured are closely related 2. plaintiff was present at the scene, and 3. plaintiff observed or perceived the injury
|
|
Is pure emotional distress sufficient to recover?
|
Plaintiff can recover damages in most jurisdictions only if defendant's conduct caused some physical symptoms from the distress. A severe shock to the nervous system that causes physical symptoms can therefore be sufficient.
|
|
What are the 2 instances in which physical injury is not required?
|
1. An erroneous report of a relative's death 2. a mishandling of a relative's corpse
|
|
CHART! Infliction of emotional distress
|
Chart
|
|
Generally, one does not have a legal duty to act but what are the 4 exceptions?
|
1. Assumption of duty by acting (once defendants profers aid, must do so with reasonable care. Good Samaritan statutes exempt nurses, etc., from ordinary but not gross negligence) 2. Peril due to defendant's conduct 3. Special relationship between parties - i.e. parent and child. Common carriers, innkeepers owe duties of reasonable care to aid their patrons 4. An affirmative duty to prevent a third person from injury others if one has the actual ability and authority to control a person's actions and knows or should know the person is likely to commit acts that would require exercise of this control
|
|
Can custom and usage be used to establish standard of care?
|
Yes, but it does not control the question of whether certain conduct amounted to negligence. Although certain behavior is custom in an industsry, a court may find that the entire industry is acting negligently.
|
|
What is the doctrine of res ipsa loquitur?
|
It requires plaintiff to show that 1. the accident causing the injury is the type that would not normally occur unless someone was negligent 2. the neglience is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in defendant's position) This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant
|
|
What is the effect of res ispa loquitur?
|
Where res ipsa loquitur is established, plaintiff has made a prima facie case and no directed verdict may be given for defendant. Plaintiff can still lose, however, if the inference of negligence is rejected by trier of fact
|
|
Questions testing on res ispa loquitur often have the defendant making a motion for directed verdict. What two things do you need to remember here?
|
1. Deny defendant's motion for directed verdict if plaintiff has established res ipsa loquitur or presented some other evidence of breach of duty (such as defendant's violation of a statute) 2. Grant defendant's motion if plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty.
|
|
Occasionally, plaintiff may also move for directed verdict in this situation. What should you do here?
|
Plaintiff's motion should always be denied except in the rare case where plaintiff has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.
|
|
Once (a) is shown, (b) plaintiff must show that the (c) was the (d). For liability to attach, plaintiff must show both (e) and (f)
|
(a) negligent conduct (b) (a breach of the standard of care owed a foreseeable plaintiff) (c) conduct (d) cause of his injury (e) actual cause and proximate cause
|
|
Before defendant's conduct can be considered proximate cause of plaintiff's injury, it must first be a cause in fact of the injury. What 3 tests exist?
|
1. "But For" Test - act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury. 2. Joint Causes Substantial Factor Test - Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant's conduct is the cause in fact if it was a substantial factor in causing the injury 3. Alternative Causes Approach - This test applies when there are 2 acts only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants and each must show that his negligence is nto the actual cause.
|
|
In addition to being a cause in fact, the defendant's conduct must also be the proximate cause of the injury. Even though the conduct actually caused plaintiff's injury, it might not be deemed to be the proximate cause. What does this make the doctrine of proximate causation?
|
It is a limitation of liability and deals with liability or nonliability for unforseeable or unusual consequences of one's acts.
|
|
What is the general rule with regard to proximate causation?
|
A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This is a foreseeability test.
|
|
Exam Tip! Often the question with regard to proximate cause issues is centered on whether one or both parties are entitled to summary judgment. What should you do here?
|
Summary judgment should be denied if there is any issue of foreseeability for the jury to decide.
|
|
In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff's injury, what is defendant liable for?
|
All foreseeable harmful results, regardless of unusual manner or timing. Defendant is not liable for unforeseeable harmful results not within the risk created by defendant's negligence. Most harmful results will be deemed foreseeable in direct cause cases.
|
|
What happens in indirect cause cases?
|
An affirmative intervening force (e.g., an act by a third person or an act of God) comes into motion after defendant's negligent act and combines with it to cause plaintiff's injury.
|
|
In indirect cause cases, when is defendant still liable
|
Defendant is liable where his negligence caues a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff
|
|
What 6 dependent intervening forces are almost always foreseeable?
|
1. subsequent medical malpractice 2. negligence of rescuers 3. efforts to protect the person or property of oneself or another 4. injuries caused by another reacting to defendant's actions 5. subsequent diseases caused by a weakened condition 6. subsequent accident substantially caused by the original injury
|
|
Are independent intervening forces that are not a natural response or reaction to the situation created by the defendant's conduct considered foreseeable?
|
They may be foreseeable if defendant's negligence increased the risk of harm from these forces. Independent intervening forces include: 1. negligent acts of third persons 2. crimes and intentional torts of third persons 3. acts of God
|
|
If a foreseeable result is caused by unforeseeable intervening forces, is the defendant liable?
|
Defendant is liable whre his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force. This rule does not apply where the unforeseeable intervening force was a crime or intentional tort of a third person
|
|
If unforeseeable result is caused by foreseeable intervening forces, is the defendant liable?
|
In the rare case where a totally unforeseeable result was caused by a foreseeable intervening force, most courts will hold defendant not liable
|
|
If unforeseeable result is caused by unforeseeable intervening forces, is the defendant liable?
|
Intervening forcdes that produce unforeseeable results (results not within the increased risk created by defendant's negligence) are generally deemed unforeseeable and superseding. Superseding forces break the causal connection between defendant's initial negligent act and plaintiff's ultimate injury, thus relieving defendant of liability
|
|
What is the eggshell-skull plaintiff rule?
|
In all cases, defendant takes his plaintiff as he finds him, i.e., defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.
|
|
CHART! Proximate Cause Rules
|
Chart
|
|
Damage is an (a) of negligence, thus damage will (b) and (c) are not available.
|
(a) essential element (b) not be presumed (c) nominal damages
|
|
What are the damages for personal injury?
|
Plaintiff is to be compensated for all his damages (past, present and prospective) both special and general. Foreseeability of the extent of harm is generally irrelevant (eggshell skull)
|
|
What are the damages for property damage?
|
The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, the fair market value at the time of the accident
|
|
When may plaintiff recover punitive damages?
|
If defendant's conduct is 'wanton and willful' reckless or malicious
|
|
What are nonrecoverable items?
|
Interest from the date of damage in a personal injury action and attorney's fees
|
|
WIth regard to damages, what duty does a plaintiff have?
|
to take reasonable steps to mitigate daamges (e.g., seek appropriate treatment)
|
|
What is the collateral source rule?
|
Damages are not reduced just because plaintiff received benefits from other sources (e.g. health insurance)
|
|
Contributory negligence is negligence on the part of the plaintiff that contributes to her injuries. What is the standard of care here? Give examples
|
It is the same as for ordinary negligence, hence a rescuer will not be deemed contributorily negligent without taking into account the emergency situation. Also, plaintiff's violation of an applicable statute may be used to establish his contributory negligence
|
|
When is contributory negligence a defense?
|
It is a defense to negligence proved by defendant's violation of an applicable statute unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (e.g. child injured after darting into street in school zone and getting hit by speeding car of defendant)
|
|
When is contributory negligence not a defense?
|
It is not a defense to wanton and willful misconduct or intentionally tortious conduct
|
|
What is the effect of contributory negligence?
|
Completely bars plaintiff's right to recovery at common law. Almost all jurisdictions now favor a comparative negligence system.
|
|
When might a plaintiff recover despite her contributory negligence?
|
Last clear chance permits plaintiff to recover. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence (it is essentially plaintiff's rebuttal to the defense of contributory negligence)
|
|
Where the plaintiff is in helpless peril, when will the defendant be liable?
|
Defendant will be liable if he knew or should have known of plaintiff's predicament
|
|
In inattentive peril situations (where plaintiff could have extricated herself if attentive) when is the defendant liable?
|
Defendant must actually have known of plaintiff's predicament
|
|
For the last clear chance doctrine to apply, what must defendant be able to do?
|
Defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If defendant's only negligence occurred earlier, the doctrine will not apply.
|
|
As a general rule, when will the contributory negligence of a third party be imputed to a plaintiff (and bar her claim)?
|
Only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence. Negligence is imputed in employer-employee, partner and joint venture relationships. Negligence is not imputed between husband and wife, parent and child and automobile owner and driver
|
|
If plaintiff assumes the risk of any damage caused by the plaintiff, can plaintiff then be denied recovery?
|
Plaintiff may be denied recovery, but must have: 1. Known of the risk 2. Voluntarily proceeded in the face of the risk
|
|
When might there be an implied assumption of risk? When is it negated?
|
Where the risk is one that an average person would clearly appreciate. Plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force or an emergency. Common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk
|
|
When is assumption of risk a defense?
|
It is not a defense to intentional torts, but it is a defense to wanton and willful misconduct
|
|
In comparative negligence states, is plaintiff's contributory negligence a complete bar to recovery?
|
The trier of fact weighs plaintiff's negligence and reduces damages accordingly (e.g. if plaintiff is 10% at fault, her damages are reduced by 10%).
|
|
A majority of states have adopted partial comparative negligence - what is that?
|
It still bars plaintiff's recovery if his negligence was more serious than defendant's negligence (or in some states at least as serious as defendant's).
|
|
What about states that have adopted pure comparative negligence?
|
They allow recovery no matter how great plaintiff's negligence.
|
|
CHART! Negligence Defenses
|
Chart
|
|
For a prima facie case of strict liability, what 4 elements must be shown?
|
1. The existence of an absolute duty on the part of the defendant to make safe 2. Breach of that duty 3. the breach of the duty was the actual and proximate cause of the plaintiff's injury 4. damage to the plaintiff's person or property
|
|
An owner is strictly liable for (a) done by a (b)
|
(a) reasonably foreseeable damage (b) trespass of his animals
|
|
Is an owner strictly liable for his wild animals?
|
An owners is strictly liable to licensees and invitees for injuries caused by wild animals as long as the injured person did nothing to bring about the injury
|
|
Is an owner strictly liable for domestic animals?
|
An owner is not strictly liable for injuries caused by domestic animals unless he has knowledge of that particular animals's dangerous propensities that are not common to the species
|
|
Give an example of when strict liability is not available
|
It will generally not be imposed in favor of trespassers in the absence of the owner's negligence. However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.
|
|
Courts generally impose what 2 requirements for finding an activity to be abnormally dangerous?
|
1. the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors and 2. the activity is not a matter of common usage in the community
|
|
Exam Tip! Exam questions on strict liability often include a statement in the facts or in an answer choice that the defendant exercised reasonable care. What should you remember here?
|
No amount of reasonable care on the part of the defendant will relieve him of liability in a strict liability situation
|
|
In strict liability cases what is the scope of duty owed?
|
The duty owed is the absolute duty to make safe the normally dangerous chacteristic of the animal or activity. It is owed to all foreseeable plaintiffs
|
|
Is contributory negligence a defense in strict liability cases?
|
It is no defense if plaintiff has failed to realize the danger or guard against it. It is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the abnormally dangerous acdtivity miscarrying.
|
|
What is a good defense to strict liability?
|
Assumption of the risk is a good defense.
|
|
What are the 5 theories of product liability that plaintiff may use?
|
1. intent 2. negligence 3. strict liability 4. implied warranties of merchantability and fitness for a particular purpose and 5. representation theories (express warranty and misrepresentation)
|
|
Exam Tip! If the question does not indicate what theory of liabiliy plaintiff is using, what should you do?
|
Apply strict liability theory because that is the easiest to prove
|
|
To find liability under any product liability theory, what common elements must plaintiff show?
|
1. a defect 2. existence of the defect when the product left defendants control
|
|
How do you establish a manufacturing defect?
|
If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect
|
|
How do you establish a design defect?
|
When all products of a line are the same but have dangerous propensities, they may be found to have a design defect
|
|
How else may a product be defective?
|
A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product. For liability to attach, the danger must not be apparent to users
|
|
How do you prove a manufacturing defect?
|
Defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable misuse). This test also applies to defective food products
|
|
How do you prove a design defect?
|
Plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product's price or utility
|
|
What role do government safety standards play with regard to product liability?
|
A product's noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence but not conclusive that the product is not defective
|
|
Give an example of when a defendant will not be held liable for defects
|
Defendant will not be held liable for dangers not foreseeable at the time of marketing
|
|
Give an example of when a manufacturer will not be held liable
|
Manufacturers will not be held liable for some dangerous products (e.g., knives) if the danger is apparent and there is no safer way to make the product
|
|
When will it be inferred that the defence existed when the product left defendant's control?
|
If the product moved through normal channels of distribution
|
|
Exam Tip! What is important to remember with regard to products liability questions?
|
The fact that there was no contractual privity between the plaintiff and the defendant will not prevent plaintiff from recovering. Any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them
|
|
When will defendant not be liable to anyone injured by an unsafe product?
|
IF defendant intended the consequences or knew that they were substantially certain to occur. Product liability cases based on intent are rare, if intent is present, the most likely tort is battery.
|
|
In products liability cases: 1. Who can sue? 2. Damages? 3. Defenses?
|
1. Privity is not required, so any injured plaintiff can sue 2. In addition to compensatory damages, punitive damages are available 3. same available in other intentional tort cases
|
|
How do you establish a prima facie case of products liability based on negligence?
|
Same as in any negligence case, plaintiff must show 1. duty 2. breach 3 actual and proximate cause 4. damages
|
|
How is breach of duty shown?
|
By the negligent conduct of defendant leading to the supply of a defective product
|
|
In products liability cases, how is negligence proved?
|
The same as in a standard negligence case, the plaintiff may invoke res ipsa loquitur
|
|
Can you hold retainlers and wholesalers liable for neligence
|
It is very difficult because they can usually satisfy their duty through a cursory inspection
|
|
What if an intermediary (e.g. wholesaler) negligently fails to discover a defect?
|
It does not supersede the original manufacturer's negligence unless hte intermediary's conduct exceeds ordinary foreseeable negligence
|
|
What type of damages are recoverable?
|
Physical injury or property damage must be show. Recovery will be denied if the sole claim is for economic loss
|
|
What are the defenses for products liability based on negligence?
|
Same as in general negligence action
|
|
For products liability, how do you establish a prima facie case of strict liability?
|
1. a strict duty owed by a commercial supplier of a product 2. breach of that duty 3. actual and proximate cause 4. damage
|
|
For strict liability to attach, what must happen?
|
The product must reach plaintiff without substantial alteration
|
|
What does strict products liability not apply to?
|
services, strict products liability only applies to products. Even where a product is provided incident to a service (e.g. blood during an operation), there is no strict liability. Plaintiff may, however, sue in negligence
|
|
Who can be held liable for strict products liability?
|
Any commercial supplier. Casual sellers will not be held strictly liable.
|
|
For strict liability, how do you establish breach of duty?
|
Plaintiff must show that the product is defective and the defect must make the product unreasonably dangerous. Retailers may be liable even if they have no opportunity to inspect the product
|
|
In strict liability cases, how do you establish causation?
|
Plaintff must show the defect existed when the product left defendant's control. If the defect is difficult to trace, plaintiff may be able to rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. Proximate cause is the same as in negligence cases
|
|
In strict liability cases, what type of damages are recoverable?
|
Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss
|
|
Is contributory negligence a defense to strict products liability?
|
It is no defense where plaintiff merely failed to discover the defect or guard against its existence, or where plaintiff's misuse was reasonably foreseeable. Assumption of the risk is a defense.
|
|
What if the product displays disclaimers?
|
They are irrelevant in negligence or strict liability cases if personal injury or property damages occur
|
|
What are the two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller?
|
1. Merchantability - refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used 2. Fitness for a particular purpose, which arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying ont he seller's skill and judgement in selecting the goods
|
|
Who can sue in a suit based on implied warranties of merchantability and fitness?
|
Most courts no longer require vertifical privity. Most states adopted a narrow version of the horizontal privity requirement. This means the buyer, family, household and guests can sue for personal injuries. These warranties extend to bailments and leases as well as sales
|
|
Does plaintiff have to prove fault in a case of breach of implied warranty of merchantabilty and fitness?
|
Nope, plaintiff does not have to prove any fault on the part of the defendant
|
|
How are causation and damages handled?
|
Actual cause and proximate cause are handled as in ordinary negligence cases. Personal injury and property damages and purely economic loss are recoverable.
|
|
What defenses are available for a breach of implied warranty of merchantability and fitness?
|
Defenses include assumption of risk (using a product while knowing of breach of warranty) and contributory negligence to the same extent as in strict liability cases. Failure to give notice of breach is a defense under the UCC (even in personal injury cases).
|
|
What effect do disclaimers have?
|
Generally rejected in personal injury cases but upheld for economic loss
|
|
In addition to the theory of implied warranties, a defendant may be liable when a product does not live up to what other priniciple?
|
Affirmative representation
|
|
What are the two representation theories?
|
Expess Warranty - any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty; and Misrepresentation of Fact
|
|
Who can sue under express warranty?
|
Any consumer, user or bystander. If a buyer sues, the warranty must have been 'part of the basis of the bargain.' If plaintiff is not in privity (e.g., a bystander), she need not have relied on the representation as long as someone did. The warranty extends to bailments and leases as well as sales.
|
|
Under Express Warranty, how do you treat: 1. Breach 2. Causation/Damages/Defenses 3. Disclaimers
|
1. Fault need not be show to establish breach. Plaintiff need only show that the product did not live up to its warranty 2. All treated just as under implied warranties 3. A disclaimer will be effective only in the unlikely event that it is consistent with the warranty.
|
|
When will a seller be liable for misrepresentations of facts concerning a product?
|
Where: 1. The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient); and 2. the seller intended to reduce reliance by the buyer in a particular transaction
|
|
Under misrepresentation of fact, what is liability based on?
|
usually based on strict liability but may also arise for intentional or negligent misrepresentations
|
|
What is a required element for establishing misrepresentation of fact?
|
Justifiable reliance is required (i.e., the representation was a substantial factor in inducing the pruchase). Reliance need not be the victim's (it may be a prior purchaser's). Privity is irrelevant
|
|
How are causation and damages treated for misrepresentation of fact?
|
Actual cause is shown by reliance. Proximate cause and damages are the same as for strict liability.
|
|
What defenses are and are not available for misrepresentation of fact?
|
Assumption of risk is not a defense if plaintiff is entitled to rely on the representation. Contributory negligence is the same as in strict liability, unless defendant committed intentional misrepresentation.
|
|
CHART! Products Liability Theories
|
Chart
|
|
Nuisance is not a separate tort in itself, so what is nuisance?
|
Nuisances are a type of harm - the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability (intentional, negligent, strict).
|
|
What are the two types of nuisance
|
Private and public
|
|
What is the definition of private nuisance?
|
A substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.
|
|
How is substantial interference further defined?
|
It is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of his own property
|
|
How do you establish unreasonable interence, as required for nuisances based on intent or negligence?
|
The severity of the inflicted injury must outweigh the utility of defendant's conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to defendant.
|
|
How do you distinguish between tresspass to land and private nuisance?
|
In trespass there is an interference with the landowner's exclusive possession by a physical invasion; in a private nuisance there is an interference with use or enjoyment
|
|
How is public nuisance defined?
|
It is an act that unreasonably interferes with the health, safety, or property rights of the community (e.g. using a building for criminal activities such as prostitution). Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large
|
|
Can you recover damages for public nuisance?
|
Plaintiff will usually be awarded damages
|
|
What options are available if teh legal remedy of damages is unavailable or inadequate (e.g. the nuisance will cause irreperable injury)?
|
Injunctive relief will be awarded. In this case, the court will consider the relative hardships. However hardships will not be balanced where defendant's conduct was willful.
|
|
In public and private nuisance cases is self-help abatement available?
|
In the case of private nuisance, self-help abatement is available after notice to defendant and his refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement
|
|
Is legislative a defense for nuisance?
|
Legislative authority for nuisance activity (e.g. zoning ordinance) is not an absolute defense but is persuasive
|
|
Is one actor usually liable for all nuisance?
|
No one actor is liable for all damage caused by concurrence of his acts and others (e.g. 10 steel mills are polluting a stream, each mill is responsible only for the pollution it causes)
|
|
Is contributory negligence a defense for nuisance?
|
Generally is no defense to nuisance unless plaintiff's case rests on a negligence theory
|
|
Can one 'come to the nuisance'?
|
One may come to the nuisance (purchase land next to an already existing nuisance) and thereafter pursue an action. It is generally not a bar to plaintiff's action unless she 'came to the nuisance' soley for the purpose of bringing a harassing lawsuit
|
|
What is vicarious liability?
|
It is liability that is derivatively imposed. In short, this means that one person commits a tortious act against a third person and another person will be liable to the third party for this act.
|
|
What is the doctrine of respondeat superior?
|
A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship
|
|
What is the concept of frolic and detour in respondeat superior?
|
An employee making a minor deviation from his employer's business for his own purposes is still acting within the scope of his employment. If the deviation in time or georgraphic area is substantial, the employer is not liable.
|
|
It is usually held that intentional tortious concut is not within the scope of employment. What are the 3 exceptions?
|
1. Force is authorized by the employment (e.g., bouncer) 2. Friction is generated by the employment (e.g. repo man) 3. The employee is furthering the business of the employer (removing customers from the premises because they were rowdy)
|
|
Employers may be liable for (a) by (b) or (c) their employees. This is not (d).
|
(a) their own neligence (b) negligently selecting (c) supervising (d) vicarious liability
|
|
In general, a principal will not be vicariously liable for tortious acts of her agent ifthe agent is an independent contractor. What are the two broad exceptions here?
|
1. the independent contractor is engaged in inherently dangerous activities, e.g. excavating next to a public sidewalk, blasting 2. the duty, because of public policy considerations, is simply nondelegable (e.g., the duty to use due care in building a fence around an excavation site).
|
|
Can an employer be liable for the selection of an independent contractor?
|
The employer may be liable for her own negligence in selecting nor supervising the independent contractor (e.g., hospital liable for contracting with unqualified and incompetent physician who negligently treats hospital patient). This is not vicarious liability
|
|
How does vicarious liability work within a partnership or joint venture?
|
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.
|
|
What vicarious liability exists for car owners?
|
The geneal rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving his car. In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission (some states have extended that to anyone driving with the owner's permission). An owner may be liable for her own negligence in entrusting the car to a driver.
|
|
What vicarious liabilty exists for a bailor?
|
Under the general rule, the bailor is not vicariously liable for hte tortious conduct of his bailee BUT the bailor may be liable for her own negligence in entrusting the bailed object. This is not vicarious liability.
|
|
What is the general level of vicarious liability a parent has for a child?
|
A parent is not vicariously liable for the tortious conduct of the child at common law. Most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount
|
|
Give an example of when a court may impose vicarious liability in a parent/child situation
|
If the child committed the tort while acting as the agent for the parents.
|
|
Can a parent be held liable for their own negligence?
|
May be held liable for her own negligence in allowing the child to do something (e.g. use a dangerous object without proper instruction). Further, if the parent is apprised of the child's conduct on past occasions showing a tendency to injure another's person/property, she may be liable for not using due care in exercising control to mitigate such contact.
|
|
What is the common law level of liability for tavernkeepers?
|
No liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee's intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee's conduct.
|
|
What is the modern law level of liability for tavernkeepers?
|
Many states, in order to avoid the common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated vendee. Several courts have imposed liability on tavernkeepers even int eh absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability
|
|
CHART! Vicarious Liability
|
Chart
|
|
What if there are two or more negligent acts combining to proximately cause an indivisible injury?
|
Each negligent actor will be jointly and severally liable (liable to plaintiff for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion
|
|
What if two or more defendants act in concern and injure plaintiff?
|
Each is jointly and severally liable for the entire injury, this is so even if the injury is divisible
|
|
In what instances has joint liability been abolished?
|
Many states have abolished joint liability either: 1. for those defendants judged to be less at fault than plaintiff, or 2. for all defendants regarding noneconomic damages. In these cases, liability will be proportional to defendant's fault
|
|
In multiple defendant issues, what are satisfaction and release?
|
Satisfaction - recovery of full payment, only one satisfaction is allowed. Until there is satisfaction one may proceed against all jointly liable parties Release - At common law, a release of one joint tortfeasor was a release of all joint tortfeasors. A majority of states now provide that a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement
|
|
(a) and (b) are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff
|
(a) contribution (b) indemnity
|
|
Generally for contribution to apply (a) But indemnity usually applies when (b)
|
(a) both defendants must have a measurable degree of culpability for the tort (b) one of the parties is much more responsible than the other
|
|
What is the rule of contribution?
|
Allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other joint liable parties for the excess, i.e., it apportions responsibility among those at fault
|
|
What limitations apply to the rule of contribution?
|
The contribution defendant must be originally liable to the plaintiff. Also, contribution is not applicable to intentional torts
|
|
Indemnity involves shifting the entire loss between or among tortfeasors. In what circumstances is it available?
|
1. by contract 2. in vicarious liability situations 3. under strict products liability 4. in some jurisdictions where there has been an identifiable different in degree of fault.
|
|
Give 3 examples of indemnity applying where there is an identifiable difference in degree of fault
|
retailers who negligently rely on a product's condition may receive indemnification from the manufacturer who negligently manufactured it; one whose liability is based on a secondary duty may recover indemnification from a person who had a primary duty; one who is passively negligent may recover indemnification from a joint tortfeasor who is actively negligent
|
|
What rules have comparative negligence states adopted?
|
Most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.
|
|
What are survival of tort actions?
|
Survival acts allow one's cause of action to survive death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interest (defamation, etc.) expire upon victim's death
|
|
What are wrongful death acts?
|
They grant recovery for pecuniary injury resulting to the spouse and next of kin. A decendent's creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in action if he had lived (e.g., deceased's contributory negligence reduces recovery in comparative negligence states)
|
|
What tortious interferece claim can spouses bring?
|
Either spouse may bring an actaion for indirect interference with consortium and services caused by defendant's intentional or negligent tortious conduct against the other spouse
|
|
What tortious interference claim can a parent/child bring?
|
A parent may maintain an action for loss of a child's services as a result of defendant's tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortiously injures the parent.
|
|
What is the nature of actions for interference with family relationships?
|
They are derivative, hence any defense that would prevent recovery by the injured family member also prevents recovery for intereference with the family relationship
|
|
END
|
END
|