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49 Cards in this Set
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What are the elements|COA to intentional torts?
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1) Act (volitional) (spontaneous acts -volitional
2) Intent: specific (goal): conscious desire to bring about resulting consequences|general: know with substantial certainty conduct will cause resulting consequence 3) Causation (legally caused\substantial factor) 4) Damages: Don't need actual damages (FABT). Nominal and punitive if malice |
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Transfered Intent
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Transfered Intent is where a party intends to harm one party but resulting harm caused to another party
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Minors and incompetents
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Minors and incompetent persons are liable for intentional torts if capable of acting for the purpose of causing the consequence or know consequences substantially certain to occur
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Don't need to know consequences are wrong\foreseeable
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Battery
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1. Volitional act
2. Intent to cause harmful or offensive contact. 3. Causation 4. Actual harmful or offensive contact results. |
Physical contact with plaintiff, or anything closely connected with person (purse, pet, car, etc.)
Harmful: Any physical impairment. Offensive : Offends a reasonable person’s sense of personal dignity, unwarranted by social usages prevalent at the time and place |
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Assault
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1. Volitional act
2. Intent to cause apprehension of imminent harmful or offensive contact. 3. Causation 4. Actual apprehension of harmful or offensive contact results. So, unlike for battery, the person must be aware of the assault. |
Future threats: Future threats usually lack imminency.
Conditional threat: A conditional threat may be an assault. Words: Words alone are generally not enough unless accompanied by some overt act. |
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False Imprisonment (FI)
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1. Volitional act
2. Intent to confine within boundaries. 3. Actual confinement results. Actual confinement may include physical force, threats of force, barriers which restrain freedom of movement, or failure to provide means of escape (when there is an affirmative duty) EXAMPLE: A steals all of B’s clothes. She cannot escape, false imprisonment. EXAMPLE: Cop makes unlawful warrantless arrest, false imisonment. EXAMPLE: Threats may constitute a barrier. 4. Awareness of confinement OR Harm from confinement EXCEPTION: Children/mentally incompetent: If defendant confines a child or mentally incompetent person, he may be liable even if that person is not aware of the confinement. |
Shopkeeper’s privilege: A shopkeeper will not be liable for false imprisonment if: (1) There are reasonable grounds to believe a theft has occurred; (2) Detention is reasonable; (3) Detention is for reasonable time.
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Intentional Infliction of Emotional Distress (IIED)
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Plaintiff may recover for the emotional distress and injuries that result from the emotional distress.
1. Extreme and outrageous conduct: Conduct that exceeds all bounds of decency tolerated in a civilized society. (More than mere insults. Look for repetition, etc.) Fragile class: If plaintiff is in a fragile class, (children, elderly, pregnant women, racial comments, etc.), and defendant knows and exploits, the outrageous requirement is lessened. Transportation/hotel employee’s conduct: More likely to be outrageous. 2. Intent to cause severe emotional distress OR Recklessness. 3. Severe emotional distress results. |
Third party recovery: Defendant may be liable for emotional distress to third parties if is aware that: (1) Close family member; AND (2) Present; OR (3) Present AND 3P suffers an emotional distress causing physical injury.
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Negligent Infliction of Emotional Distress (NIED)
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Generally negligence is insufficient to recover for emotional distress (though emotional distress damages will be allowed as part of physical injury claims)
Exceptions: Negligent transmission of a message: If a hospital negligently misinforms a plaintiff that a family member has died, recovery may be allowed. Negligent mishandling of corpses: Negligent mishandling of corpses may give rise to liability. Zone of danger AND physical manifestation of distress: Must be in zone of danger AND have some physical injury from the distress. Physical injury: A party may recover for negligent infliction of emotional distress if defendant’s conduct caused some physical injury. |
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Trespass to Land
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1. Volitional act
2. Intent to enter land (even if by mistake. Intent means intent to enter the land.) Negligent or reckless entries: A person who negligently or recklessly enters land of another is liable for trespass only if he harms the land. 3. Actual entry into land of another results OR Remaining on land of another OR Failure to remove something from the land Causing an item to enter land of another: Sufficient for trespass to land Particulate matter: Modernly there may be liability for intrusions of microscopic particles where harm is caused. Light/sound/smell: Maybe a nuisance, but NOT a trespass. Airspace/subterrain: Plaintiff owns soil below and airspace above within immediate reach of his land. |
NOTE: Think also about Nuisance!
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Trespass to Chattels
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1. Volitional act
2. Intent to intermeddle with (use, take) chattel of another. Mistake of right is not a defense to trespass to chattels. EXAMPLE: A reasonably believed she could use B’s bag. Not a defense. 3. Dispossession/intermeddling results. 4. Damages: Must be damages (either (1) Harm; or (2) Dispossession). |
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Conversion
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Trespass to chattels so serious that it warrants a forced sale. Damages are measured by full value of the chattel at time of conversion. Alternatively, plaintiff could sue for replevin.
Factors to consider: (1) Extent and duration of defendant’s dominion; (2) Extent and duration of interference; (3) Harm to chattel; (4) Intent to steal (5) Good faith |
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Consent is a DEFENSE TO INTENTIONAL TORTS
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Consent is a DEFENSE TO INTENTIONAL TORTS.
Consent NOT VALID if: (1) Incapacity to consent; (2) Consent derived from duress/fraud; (3) Consent is exceeded; (4) Illegality (statutory rape, etc.) Express consent: Plaintiff gives consent. EXAMPLE: A agrees to have sex with B. B does not tell A he has a sexually transmitted disease. There is a battery, the consent is not valid because derived through fraud. Implied consent: Consent is implied by law or implied by actions. Look at objectively reasonable belief of defendant—not subjective belief of plaintiff. EXAMPLE: A is unconscious, doctor performs surgery. Implied consent. EXAMPLE: A tackles B in football game. Implied consent. EXAMPLE: A is shoved in a subway. Implied consent. |
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Necessity is a DEFENSE TO INTENTIONAL TORTS
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Necessity: A person may invade the property of another (applies to Trespass to Land AND Trespass to Chattels) if:
Public necessity: Reasonably appears necessary to avert a public disaster. Defendant not liable for the trespass OR damage to property or chattel. This is a complete defense. Private necessity: Reasonably appears necessary to avoid harm to self/own property. Defendant will not be liable for trespass, but WILL BE liable for damage to property or chattel. This is a limited defense. |
Right of sanctuary: So long as the privilege continues, the plaintiff may not eject the defendant. If he does, he will be liable for property damages/personal injury that result.
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Self Defense/Defense of Others is a DEFENSE TO INTENTIONAL TORTS
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Anyone is privileged to use reasonable force to defend himself or someone else against an imminent threatened (or reasonable belief) battery.
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Mistakes: Reasonable mistakes are permitted when defending oneself or somebody else.
EXAMPLE: A defends against B and hits C, no liability. |
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Defense of property is a DEFENSE TO INTENTIONAL TORTS
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Actor may use reasonable force to prevent or terminate another’s intrusion to property.
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Deadly force: May NOT use deadly force unless a threat to the actor’s own safety justifies it.
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Recapture of real property is a DEFENSE TO INTENTIONAL TORTS
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No physical force can be used. However, may forcibly enter her land (cut down fence, etc.)
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Recapture of chattels is a DEFENSE TO INTENTIONAL TORTS
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Actor may use reasonable force in hot pursuit to recapture chattels if chattel was taken tortiously. However, where original taking was rightful (valet parking, etc.), may not use force.
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Discipline is a DEFENSE TO INTENTIONAL TORTS
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Parents can be privileged to discipline their children. Parents may extend that privilege to others (babysitters, schools, etc.)
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Arrest is a DEFENSE TO INTENTIONAL TORTS
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Arrest: An officer or private citizen may make arrest for felony or breach of peace committed.
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Citizen’s arrest: Citizen may use force to arrest for a misdemeanor breach of peace committed in his presence. He may also use force if a felony has been committed, but felony must have actually been committed—may not make mistake. Reasonable mistake of identity allowed,
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What is a Public nuisance
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Unreasonable interference with a right common to general public (health, safety, peace, comfort, convenience, etc.).
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May bring suit only if:
1. Special injury: The individual must have suffered harm different from that suffered by other members of the public; OR 2. Public official: Public officials can bring a suit to abate a public nuisance |
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What is a Private nuisance
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Unreasonable and substantial interference with use and enjoyment of land. Offensive, inconvenient, or annoying to average person in community.
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Substantial: Offensive, inconvenient, or annoying to average person in community. Abnormally sensitive uses: Interference only with a neighbor’s abnormally sensitive use will not be substantial to average person.
Unreasonable: Harm to plaintiff is greater than utility of defendant’s conduct; OR, if there is high utility, we could compensate plaintiff without discontinuing defendant’s conduct EXAMPLE: A has hypersensitivity to activity otherwise reasonable. Not a nuisance. EXAMPLE: Fears and feelings of members of community may be taken into account even if scientifically baseless. |
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What are the defenses to Nuisance
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Coming to the nuisance: If the nuisance was there before you got there, that will not bar the action, but it will be an important factor to be considered.
Compliance with a statute: If the conduct is in compliance with regulations (zoning, pollution control, etc.), that may not bar the action, but it will be an important factor to be considered. Contributory negligence: Negligent nuisance: If nuisance is negligent, contributory negligence will be a defense. Intentional nuisance: If nuisance is intentional, it will not be a defense. Voluntary assumption of a known risk: A plaintiff cannot recover in a negligence action if he (1) Has knowledge of the risk; and (2) Voluntarily assumed the risk |
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What are the remedies to nuisance claims
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Damages:
Injunction: An injunction may be awarded if 1. Inadequacy of legal remedies: An injunction will only be awarded if legal damages are inadequate (continued wrong, nuisance will cause irreparable harm, etc.) 2. Balance equities: Court must balance hardship 3. Public interest: Consider any public intersts Abatement by self-help: Plaintiff may enter upon defendant’s land and personally abate nuisance after notice has been given and defendant has refused to act. This may include reasonable destruction of property. Necessity. |
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“To prove negligence plaintiff must show:
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(1) Duty; (2) Breach; (3) Actual cause; (4) Proximate cause; and (5) Damages.”
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What must a Plaintiff show by preponderance of the evidence
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(1) Duty; (2) Breach; (3) Actual cause; (4) Proximate cause; and (5) Damages.”
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Define Duty
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The general duty is to exercise care of a reasonable person in same or similar circumstances. This includes complying with statutes.
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This is the duty of a Average reasonable person.
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Who does a Defendant owe a duty to
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Defendant only owes duty to foreseeable plaintiffs.
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MAJORITY (Cardozo): Those in zone of danger are foreseeable.
MINORITY (Andrews): Duty to whole world. |
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why is the Rescuer doctrine under DUTY
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Rescuers are foreseeable. Even when rescue efforts are done negligently, so long as not wonton, defendant will be liable to damages or injuries resulting from rescue efforts.
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EXAMPLE: D knocked out P with a bat. R negligently performed CPR on B and broke B’s ribs and R’s wrists. D is liable for all injuries, including B’s broken ribs and R’s broken wrists.
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why is the Firefighters/police under DUTY
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: Defendant is NOT liable for injuries resulting from the risks inherent in their job. They assume the risk in their jobs.
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Why is Unborn fetus under DUTY
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Because An unborn fetus is a foreseeable plaintiff.
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Why is 3rd party beneficiaries under DUTY
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Because 3rd party beneficiaries are foreseeable plaintiffs for economic harm
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What is the Standard of care (SOC) under DUTY
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The general duty is to exercise care of a reasonable person under same or similar circumstances. There are some variations:
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RPUSSC
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under DUTY, what is the standard of care of Professionals/special skills and knowledge
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If an individual has special skills and knowledge, he will be held to average person in that group with same special skills and knowledge in that community.
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under DUTY, what is the standard of care of Medical professionals
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Duty to disclose risks that a reasonable person would want to know.
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under DUTY, what is the standard of care of Emergencies
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Must act as reasonable person in similar emergency.
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under DUTY, what is the standard of care of Children
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Must act as reasonable person of like age, intelligence, and experience.
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EXCEPTION: If child is engaging in adult activities (driving car, boat, etc.), he will be held to adult standard of care.
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under DUTY, what is the standard of care of Mentally deficiency
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IQ is irrelevant. Will be held to standard of reasonable person.
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under DUTY, what is the standard of care of Physical disability
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Must act as reasonable person under like disability.
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under DUTY, what is the standard of care of Automobile drivers
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Generally must act as reasonable person.
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EXCEPTION: Guest statutes impose a lessened duty—refrain from gross, wanton, or willful misconduct.
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under DUTY, what is the standard of care of Land possessors’ duty to trespassers
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Trespasser (enters without permission/privilege):
Unknown trespassers: No duty of care. Known (or anticipated) trespassers: (1) Duty to warn of known, hidden, artificial, extreme dangers; (2) Duty to conduct activities with reasonable care |
Attractive nuisance doctrine: Landowner may be liable if:
(1) If artificial dangerous condition exists that presents attraction to children, (2) The risk outweighs cost of eliminating danger; and (3) That particular child is unable to appreciate the risk (if that child appreciates the risk, this does not apply). |
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under DUTY, what is the standard of care of Land possessors’ duty to licensees
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Licensee (enters with consent, not invitee—social guests, etc.):
(1) Duty to warn of known, hidden, dangers; (2) Duty to conduct activities with reasonable care |
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under DUTY, what is the standard of care of Land possessors’ duty to invitees
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Duty to exercise reasonable care, inspect, and keep safe
(Invitee is a person entering for possessor’s business, such as customers in store. |
May be Public invitee, such as people in park, etc.
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under DUTY, what is the standard of care of Landlord’s duty
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Landlord’s duty: Generally no liability except:
(1) Warn tenant of known hidden defects; (2) Common areas; (3) Assumption of repairs; (4) Short term lease of furnished dwelling; (5) Public space |
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What is the DUTY under a Statutory standard of care
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Statues may set the standard of care.
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What is the DUTY under Criminal statutes
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May use criminal statutes to show standard of care only if:
(1) Plaintiff was member of class statute was designed to protect; (2) Harm was type of harm statute was designed to protect |
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Is there a DUTY under an Omission
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Generally there is no duty to act to protect others. Below are exceptions:
1. Defendant caused harm: One who caused harm, whether innocently or tortiously, has a duty to prevent further harm. 2. Assumption of duty: One who begins to act is placed under a duty to act reasonably (cannot be negligent), and to continue to act if his actions have left the person in a worse position Good Samaritan Statutes: Good Samaritan statues may exempt volunteer rescuers from negligence (but not gross negligence) 3. Close relationships: People with close relationships have a duty to act to aid each other 4. Duty to control others: Generally no duty to control others unless: (1) Special relationship: Parent/child; Master/Servant (employee); Teacher/student, etc.; (2) Knowledge of propensity 5. Common carriers/Inkeepers: Common carriers such as bus drivers, etc., have a duty to help passengers. Innkeepers owe a duty to their guests. 6. Landowners: Landowners have a duty to rescue invitees 7. Custody keepers: People who take others into custody voluntarily or as required by law, depriving that person of ability to protect himself, have a duty to those people. |
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What is the Lessors’ DUTY to lessee
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Lessor generally has no duty for harm cause by property leased by lessee unless:
(1) Failure to warn; (2) Negligent repair |
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What is the definition of a BREACH
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Plaintiff must show defendant breached the duty.
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Proof of negligence: Plaintiff may show breach by identifying the defrendant’s faulty conduct.
NOTE: The length of the breach analysis will be inversely proportional to the length of the duty analysis. Circumstantial evidence of negligence: Res Ispa Loquitur (“The thing speaks for itself.”): If plaintiff cannot show exactly what happened, court may infer negligence if plaintiff can show: 1. Probably negligence: This type of accident usually does not occur absent negligence 2. Probably the defendant: Must show that the defendant was in control of the instrumentality that caused the injury. Violation of statute: Violation of a statue is evidence of negligence. Moreover, if statute defines the conduct of a reasonable person, and the defendant does not comply with the statute, it is Negligence Per Se. Violation of criminal statutes: May be used to show breach if plaintiff can show: (1) He was member of class statute was designed to protect; (2) He suffered type of harm statute was designed to protect |
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What is the FACTUAL CAUSE in a negligence action
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Plaintiff must show that defendant’s conduct was a cause in fact.
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Single defendant: But for test: These damages would not have happened but for defendant’s conduct.
Multiple defendants, mingled causes: Substantial factor test: If multiple defendants caused an injury, and either alone would have caused it, they will still be liable if conduct is a substantial factor in the injury. Multiple defendants, alternative causes: When an injury is caused by negligence of multiple persons and plaintiff cannot determine who caused harm, burden of proof shifts to defendants. |