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186 Cards in this Set

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what is the barf for battery?
Volitional, unauthorized, intent to cause a harmful or offensive touching of another, when the touching actually occurs.
what is the barf for assault?
Volitional, unauthorized, act done with the intent to place someone in reasonable apprehension of an immediate harmful or offensive touching, coupled with the perceived ability to carry it out.
what is the barf for false imprisonment?
intentional confinment of another to a bounded area where the p is either aware of the confinement or is harmed by it.
what is the barf for intentional infliction of emotional distress?
conduct which is intentional or reckless, extreme and outrageous which causes severe emotional distress
what is the barf for trespass to land
Volitional, unauthorized, intentional entry on to the land of another.
what is the barf for trespass to chattels?
Volitional, unauthorized intent to meddle with the chattel of another, where there is actual damage.
what is the barf for conversion?
Volitional, unauthorized, intentional exercise of dominion over the personal property of another, where the interference is so severe or serious that converter must purchase the property.
what is the definition of intent?
Desire to cause the consequences.
Knowledge to a substantial certainty that the consequence will occur.
what is transferred intent?
Intent can be transferred to 3rd party if harm results to that 3rd party.
Intent can be transferred between torts (assault, battery, and false imprisonment.)
what are the two types of consent?
1. Express consent- I consent

2. Implied consent- a reasonable person could assume the person consented
what are the defenses to consent?
fraud
duress
mistake
outside plaintiff's consent
when can a person use self defense?
A person is privileged to use reasonable force to defend oneself (retaliation is not allowed.)
when can a person aid in the defense of a third party?
if a person is privileged to use self-defense then someone can step into their shoes to defend them.

Majority-the one who intervenes bears the risk of mistake.

Minority-reasonable mistake is allowed (very fact dependent.)
when can a person defend their property?
Must use reasonable force for protection of property.

Can’t use deadly force to protect property, only in defense of person.
when can someone recover their property?
1.Reasonable force
2.Right wrongdoer, property owner bears the risk of mistake.
3.Unlawful possession, property owner bears the risk of mistake.
4.In hot pursuit
5.Timely oral demand before resorting to force
when may invoke a shopkeepers privilege?
1.Reasonable belief that theft occurred.
2.Reasonable belief that this party committed the theft.
3.Reasonable investigation (detention) reasonable in every way.
what is public necessity?
take or enter property in order to save the public at large
*No compensation to individual
*Privilege extends if the person made a reasonable judgment even if it turns out to be a mistake
*If lesser action would suffice, then no privilege for bigger action
what is a private necessity?
Take or enter property in order to save individual or individual’s property
*Must compensate individual
*Not liable for trespass therefore can’t be forced to leave and can use reasonable force to stop
*Must be a reasonable decision. You run a risk when taking or using property for protection
*Even if the person created the risk he can use private necessity
what is the barf for negligence?
A duty to act to a certain standard where the standard was breached, and the breach was the actual and legal cause of the damages.
what is the barf for negligence?
For P to prove a cause of action of negligence against D, he must prove that the D owed him a duty to a specified standard of care and that the breach of that duty was the actual and legal cause of his damages.
what are the elements of negligence?
1. duty
2. standard of care
3. breech
4. actual cause
5. legal cause
6. damages
how can a duty be shown to be owed to the plaintiff by the defendant?
A duty can be shown if D did an affirmative act, or an omission to act.

A duty to act with reasonable care
what is the duty of care owed by a landowner regarding a natural condition to someone outside the property?
no duty owed. only exception could be trees for which is reasonable care.
what duty is owed to an unknown trespasser in regards to a natural condition on the property of the landowner?
no duty owed
what duty is owed to a known tresspasser in regards to a natural condition on the property of the landowner?
no duty owed
what three burdens does a plaintiff have on the issue of negligence?
1. burden of pleading
2. burden of going forward
3. ultimate burden of persuasion
what is a duty?
A sufficient relationship between the Plaintiff and Defendant that the Defendant has an obligation to look out for this Plaintiff.
A duty to act with reasonable care!
generally, does a bystander owe a duty in situations where he did not create the peril?
no
in which instances does a bystander owe a duty to act?
1.If bystander begins to help, then he must exercise due care in giving assistance
2.Discontinuing aid only when it will not leave the person in a worse condition than when the aid commenced. Induces reliance by promise to act.
3.If Defendant innocently or negligently places Plaintiff in danger
4.There is a special relationship between Plaintiff and Defendant, or
5.Defendant is in control of the instrumentality that injured Plaintiff.
what are the three aspects of duty in regards to special relationships?
1. duty to care-if the plaintiff creates an economic benefit for the defendant
2. duty to warn-when the defendant becomes aware that there will be harm brought against a specific third person
3. duty to control- when the defendant must exercise due care to prevent the person under their control from injuring the plaintiff
what is the majority view in regards to inducing reliance by a promise or an act?
The bystander is not under a duty to care if only promised to give aid, even if the Plaintiff relied to his detriment.
what is the minority view in regards to inducing reliance or an act?
The bystander owes duty of care if the promise to aid is made.
what is the majority view in regards to forseeability to plaintiffs?
Foreseeability of Plaintiff: what you as a reasonable person would anticipate:
Majority: (Cardozo) – Foresight: Unless the Defendant can foresee the injury to THAT PARTICULAR Plaintiff, no duty is owed. Only a specifically foreseeable Plaintiff can recover.
what is the minority view in regards to forseeability to plaintiffs?
Minority: (Andrew) – Hindsight: We should look in hindsight and say, “now that the explosion has occurred, to what extent are damages typical?” “Anyone can recover unless their suffering injury was just so extraordinary that, in hindsight, we cannot imagine that it could happen.”
what is a licensee? whats dutys are owed to them by a landoccupier in regards to natural conditions? artifical conditions? activity on the property?
Social Guest: There with permission by the landowner. landowners have a duty to warn of known dangers in regards to natural conditions and artificial conditions. during activity, landowners only owe a duty of reasonable care
what is an invitee? what duty is owed to them by a landoccupier in regards to a natural condition? artificial condition? activity?
public or business purposes. Not invited on your land.
Natural Conditions: Reasonable care
Artificial Conditions: Reasonable care
Activity: Reasonable care
what is the majority View in regards to persons on the premises who are doing work or creating artificial conditions on behalf of the possessor?
they are subject to the same liability, and entitled to the same immunity as the possessor, but other persons on the land without his permission have no such immunity.
Generally are lessor's liable for defective conditions existing at the time of the lease?
no
what are the elements of artificial conditions highly dangerous to trespassing children?
1.The Landoccupier knows or has reason to know that children are likely to trespass.
2.Landoccupier knows or has reason to know that there an artificial condition on his property that poses a high degree of risk to children.
3.Children, due to their age and inexperience, do not recognize or appreciate the danger.
4.The risks to the child must be much greater than the burden on the Defendant to eliminate.
are there certain people that can come onto the land without the owner’s consent?
yes,Related to landowner’s business.
a.Health Inspectors
b.Meter readers
c.Tax Assessors
what are parties entering onto the land in regards to landowners business such as Health Inspectors,Meter readers, and Tax Assessors to be treated as?
they are to be treated as invitees and thus are owed a duty of reasonable care
parties that enter on the property of a landoccupier such as health inspectors, meter readers and tax assessors are treated as invitee's or licensee?
they are treated as invitees and thus are owed a reasonable standard of care.
what is the significance of Rowland v Christian?
Under Rowland v. Christian, reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee, in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values.
This court did away with the classifications and said regardless of person entering into your land, you owe them reasonable care.
when can a statute be used to define a standard of care?
A statute can be used to define reasonable care if:
1.Plaintiff is in the class of people designed to be protected.
2.Plaintiff suffered the type of harm designed to be prevented by the statute.
3.There is a measurable standard. Under actual cause there is a direct causal connection between the violation of the statute and the injury
what are the six ways we can attempt to define standard of care for a negligence action?
carrier
minor(adult acty)
professional
p+G/b+u
custom
statute
what is custom in regards to proving a standard of care for neglegence?
What is customary to do is evidence of what a reasonable person would do, but this is not controlling.
You can prove that the custom is unreasonable by proving that the probability and gravity of the injury outweigh the burden and utility of the custom.
what is the expectation of a person in an emergency?
A person in an emergency situation should not expected to exercise the same judgment of a reasonable person, but it is still possible to act unreasonably in such situations. Must look at the totality of the circumstances.
We only expect him to act as a reasonable person would in an emergency or under those circumstances.
what is the standard of care in regards to children?
Usually children are held to the standard of a reasonable child of the same age, intelligence, and experience.
When engaging in an adult activity, (driving anything with a motor) that child would then be expected to behave in the same way an adult would in the same circumstances.
what is common carrier in regards to standard of care for negligence?
Where you give control of your physical person (e.g., taxi, plane, bus), the standard is great care and even a minor deviation from reasonable care would be actionable.
what is a professional standard in regards to establishing a standard of care for negligence?
When a person rendering service holds himself out as having superior knowledge, training and skill, he is held to a standard of care that is the knowledge and training and skill of an ORDINARY member of that profession in good standing.
what is lack of informed consent?
doctor has obligation to inform patient of risk and course of treatment. A duty arises due to an affirmative act and the contractual relationship with the patient, which creates the duty to do the medical treatments appropriately and to disclose the risks of the treatment.
must a plaintiff prove that she suffered from actual damages in regards to a lack of informed consent for a medical neglicence action?
yes if she doesn’t, then the doctor’s failure to make the disclosure hasn’t caused the patient to suffer damages, which is required in all negligence actions.
what is the majority view of care owed by doctor's?
Majority View: a doctor must perform to the standard of what a typical professional in good standing in the same or similar communities would to.
what is the minority view for standard of care owed by doctor's?
Minority View: There is a national standard of care for all doctors.
What are the three parts of the duty of reasonable care owed by an attorney:
1. Learning skill and ability
2. Exert best judgment
3. Exercise reasonable care in developing your learning in exercising your best judgment. (Must conduct a reasonable investigation to reveal the consequences of the affirmative act understood)
in an attorney negligence action why must the plaintiff prove two causes of action?
Plaintiff must basically prove two cases; he must show that he would have won the underlying action had the attorney proceeded in the proper manner.
what must a plaintiff prove during an attorney negligence action?
Plaintiff must basically prove two cases; he must show that he would have won the underlying action had the attorney proceeded in the proper manner.
what are the three ways to prove breach during a negligence cause of action?
1. negligence per se( unexcused violation of statute
2. reasonable person p+g/b+u
3. res ipsa loquitur
what must we analyize when looking at useding a unexcused violation of statute for breach in a negligence cause of action?
1.Who is this statute trying to protect?
2.What act was the statute trying to prevent?
3.Does the statute set a measurable standard?
a.Causal Connection between the act and the injury.
·Majority: Violation of a statute is negligence per se
·Minority: It’s evidence of negligence, not controlling.
under what circumstances can may a violation of statute be excused?
a.Violation is reasonable because of the actor’s incapacity
b.Neither knows nor should have known the occasion for compliance
c.He is unable after reasonable diligence or care to comply
d.He is confronted by an emergency not due to his own misconduct
e.Compliance would involve greater risk of harm to actor or others
what are the elements for res ipsa loquitur?
1.The kind of incident does not occur unless someone has been negligent.
2.More probably than not that it was the Defendant who was negligent.
3.The Plaintiff was not negligent in causing the specific event.
what is the significance of Ybarra v. Spangard?
·An attempt to use res ipsa against multiple Defendants.
·The burden was shifted to the Defendants – all of them had a duty to the patient and were responsible for everybody else’s actions.
·In this kind of situation, where each Defendant was responsible for everyone, the court was able to invoke res ipsa for all of them. Someone was negligent and all Defendants are liable for the injury Plaintiff suffered.
in what ways may people treat res ipsa?
1.As an inference: So, it is always possible for the Plaintiff to lose since the jury does not have to draw the inference.
2.As a presumption of evidence. If the Defendant says nothing, he will loose.
3.As a presumption of evidence that shifts the burden of proof to the Defendant.
what factors can be used in showing actual cause in a negligence cause of action?
but for (or)
1. substantial factor
2. summers v tice
3. sindell-market share
what is substantial factor in regards to a negligence cause of action?
Where the conduct of more than one Defendant combines to cause injury to Plaintiff, but each individual’s conduct alone would have been sufficient to cause the injury, Defendant’s conduct will be regarded as the cause in fact of Plaintiff’s injury if it was a substantial factor in bringing about the injury.
what is the significance of summers v tice?
When Plaintiff is injured by two independently acting Defendants but only one actual caused the injury, both will be held liable, unless one of the Defendant can prove that only one of them is liable.
what is market share in regards to a negligence cause of action?
·Single cause, several identifiable tortfeasors.
·Defendants who acted independently but cannot be identified which particular Defendant’s conduct caused the injury, all will be liable for damages assessed by their percentage of the product marketed.
what are the problems in determining foreseeability:( Eggshell rule)?
1.Person injured was not foreseeable
2.Type of injury was not foreseeable
3.Extent of injury was not foreseeable
4.Manner in which accident occurred was not foreseeable.
what is the polemis rule?
(Andrews) (Minority view. Adopted by CA.)
·If you do a negligent act, you are responsible for all of the injuries that result as long as they are in a direct, continuous and flowing sequence.
·The fact that the kind of damage which an act might probably cause was not the damage anticipated is immaterial so long as the resulting damage is directly traceable to the negligent act, and not due to independent cause having no connection with the negligent act.
what is the thin skull plaintiff rule?
You take the Plaintiff as you find him. A tortfeasor bears the responsibility for all damages proximately caused by tortuous conduct, even if the damages appear disproportionate to the tortuous conduct. No matter what jurisdiction you’re in, if the Defendant does an act that poses a risk of physical injury to Plaintiff, Plaintiff’s preexisting condition to suffer more injury than a “normal” person doesn’t matter. Defendant is liable for the full extent of the circumstances.
what is an intervening force?
One which actively operates in producing harm to another after the actor’s negligent act or omission has been committed
what is a superceding force?
When courts have decided that the intervening act should cut of liability, it is labeled a “superceding” cause.
Generally, it is an action by a different party or entity that occurs after a Defendant’s negligent action and contributes to the Plaintiff’s injury.
what are the exceptions to Superceding Forces?
·Malicious Acts: Intentional, malicious or criminal acts by a third party are sufficiently unforeseeable to relieve a Defendant of liability.
·Gross or Extraordinary Negligence: While ordinary negligence by a third party is considered foreseeable, extraordinary negligence is not and may relieve a Defendant of liability.
·Acts of Nature: Acts of nature are unforeseeable, and will relieve a Defendant of liability if the damages caused are different than that which was threatened by the Defendant.
·Suicide: Suicide is a superseding intervening cause if the person who committed suicide was not driven by an irresistible impulse.
what is the negligent infliction of emotional distress?
the tort of causing another severe emotional distress through ones negligent conduct. Note: most courts will allow a plaintiff to recover damages for emotional distress if the defendants conduct results in physical contact with the plaintiff or, when no contact occurs, if the plaintiff is in the zone of danger.
what is a bonafide purchaser?
If title has actually transferred to middle person due to fraud and is then re-sold the new owner is not liable for conversion if she:
1.Gives full value for the property
2.Has no knowledge of conflicting claims
what are the three exceptions where landlord is liable all of the time?
1.Common areas (if you rent an apartment, you don’t have the exclusive rights to the hallways, swimming pool, laundry room, etc.)
2.Where lessor contracts to repair; contractual obligations
3.When the lessor undertakes to repair and is negligent in making the repairs.
what is negligent infliction of emotional distress?
Unreasonable behavior that causes someone injury. This is not a separate cause of action. It’s negligence, period.
what are three exceptions where landlord is liable all of the time?
1. Common areas (if you rent an apartment, you don’t have the exclusive rights to the hallways, swimming pool, laundry room, etc.)
2.Where lessor contracts to repair; contractual obligations
3.When the lessor undertakes to repair and is negligent in making the repairs.
Do landlords have a duty to take reasonable steps to prevent criminal activity?
yes
1. If those types of crimes were foreseeable.
2. Landlord has notice of criminal acts
3. Landlord knows that these crimes occurred in “common areas” under his control.
4. Landlord has reason to expect recurrence of such crimes; and
5. Landlord has exclusive power to take preventive action.
6. The landlord in these situations has a duty to take steps within his power to minimize the predictable risk to his tenants.
7. In CA, there have to have been previous, substantially similar types of crimes.
When you have an obligation to act you may can you become liable if you have not acted?
yes
Do the police have an obligation to come to the assistance of any specific individual?
no, unless they have state their special services to that person
for IIED, what are the elements for a direct victim?
1. intentional or reckless conduct
2. Extreme and outrageous conduct
3. extreme emotional distress
what are the elements of IIED regarding bystanders?
1. d knew 3rd party was present
2. close relationship
3. no close relationship but physical manifestation
What is the elements of NEID majority rule for direct victim?
1. comes under duty
2. must be a physical manfiestation
what are the elements of NEID majority rule for bystanders?
1. must be in zone of danger
2. physical manfiestation
3. close relationship
what are the elements of NEID minority view for direct victims?
1. was it foreseeable?
2. no physical manfestation (ca rule)
what are the elements of NEID minority rule for bystanders?
1. located near the scene
2. contemporaneously perceived (through senses)
3. close relationship
if a person has special knowledge that typical people dont have must you use that knowledge to avoid liability?
yes
what is the locality rule in regards to doctors?
conduct of doctor will be judged by what a reasonable practitioner in good standing in that area of the country would have done
what is informed consent?
1. dr must inform patient of material risks for those likely to affect patient' decision
what is neg per se?
1. party is in class of people to be protected by statute
2. harm is harm to be prevented by statute
3. direct causual connection between violation of statute and injury
what is contributory negligence?
plaintiffs negligence bars their recovery from a negligent defendant
Is last clear chance a defense to comparative negligence?
no it only applies to contributory negligence
what is comparative negligence?
plaintiff can recover percentage of damage that plaintiff did not cause. reduces the plaintiffs damage by his proportion of fault
what are the three types of strict liability?
1. animals
2. abnormally dangerous activity
3. product liability
what is the barf for abnormaly dangerous activities?
when a person engages in or maintains an abnormally dangerous activity they will be strictly liable for injury the activity causes to foreseeable plaintiffs.
what are the 6 factors to consider concerning abnormally dangerous activies?
1. high risk of injury
2. gravity of injury
3. can the risk be eliminated by reasonable care
4. common usage
5. innappropriate to the area
6. value to the community
what is the barf for strict liability?
when a commercial supplier puts a product in a defective condition unreasonably dangerous into the stream of commerece and unaltered, it causes injury he is strictly liable.
what are the three ways a product can be unreasonably dangerous?
1. manufacturing flaw
2.design defect
3. warning
what is a manufacturing flaw?
where one product deviates from many made by the same manufacturer
what are the two tests for design defect?
1. consumer expectation test (minority)
2. risk benefit test
what is the consumer expectation test?
is the product dangerous beyond the expectation of the ordinary consumer with typical knowledge of the product
what is the risk benefit test?
the plaintiff must weigh the risk of the product and he benefits of the product as well as prove that a feasible alternative design for the product existed at the time of manufacture. The alternative must have been feasible based upon the technology available at the time of manufacture, eliminate or minimize the risks, but not create intolerable new risks and not make the product prohibitively expensive.
what is a warning defect?
the manufacturer of a product is obligated to arn of risks known or knowable given the state o the art at the time of manufacture.
what are the defenses to strict liability?
1. alteration
2. unforeseeable misuse
3. assumption of risk
4. comparative fault
what is an express warranty?
is an affirmation of fact, oral or written, about the goods that becomes part of the basis of the bargain.
what is implied warranty of fitness for a particular purpose?
when a seller implies that a product is fit for a particular purpose and the plaintiff relies on that implication.
can any foreseeable user of a product pursuent to the implied warranty of fitness for a particular purpose recover?
in the majority view, any foreseeabl user of the product can recover
what is vicarious liability?
employer is responsible for employees acts when employee is acting within the scope of employment, under employers control, and the activity benefits the employer.
what are non-delegable duties?
some duties that may not be deligated to an independent contractor
what are some examples of duties that are non-delegable?
1. work in a public place
2. duty to maintain property
3. abnormally dangerous activity
4. general contractor-subcontractor
5. brake repair
6. peculiar risk
In what to ways a defendant has a duty to control the acts of a third person?
1. defendant stands in a special relationship to the plaintiff that creates a duty to protect him from a third person.
2.defendant stands in a special relation to the third person that gives him power over that persons actions
Do therapists have a duty to control their patients?
no, an immunity statute exists to not create the duty. This was done to protect the confidentiality relationship
do therapists have a duty to warn another third party of potential harm by their patient?
yes, the court has stated that the victims life outweighs uncertain damage the therapist had with his patient (tarasoff)
what are the elements of IIED for a direct victim?
1. intentional or reckless conduct
2. extreme and outrageous conduct
3. extreme emotional distress
what are the additional elements for IIED regarding a bystander?
1. d knew 3rd party was present
2. close relationship
3. If no close relationship then physical manifestation
For a direct victim to recover for NEID,must a direct victim, purusuant to a majority jurisdiction, must there be a physical manfestation?
yes
For a bystander to recover for NEID in a majority jurisdiction, what must they prove?
1. must be in zone of danger
2. physical manfiestation
3. close relationship
For a direct victim to recover or NEID in a minority jurisdiction, what must they prove?
1. was the injury forseeable?
2. no physical manfestation (ca rule)
For a bystander to recover for NEID in a minority jurisdiction, what must they prove?
1. located near the scene
2. contemporaneously perceived (through senses)
3. close relationship
are unmarried co-habitants in all jurisdictions barred from recovery for NEID?
yes
Does the thin skull plaintiff rule work for plaintiffs trying to bring a cause of action for NEID
no, if the plaintiff has a pre-existing condition, they can only recover for the injury that a typical person would suffer.
In regards to unborn children, who can sue regarding wrongful death?
only the designated heirs can sue. Can only recover what part of the estate that would have been used in their support
In a majority jurisdiction, may a party bring a wrongful death suit for an unborn child?
yes
In california, may a party bring suit for the wrongful death of an unborn child?
no, yhou cannot recover for the wrongful death of a child that was never born. Ca is in the minority
What is wrongful life?
a cause of action brought if the child is born with birth defects who would not have been born hadthe doctor propely advised or treated his mother
what are the defenses to negligence?
1. contributory negligence
2. comparative negligence
3. assumption of risk
4. last clear chance doctrine
what is contributory negligence?
if the plaintiff contributed to his own injury, then he would be barred from recovery.
Is contributory negligence only a defense to negligence?
yes, it is not a defense to intentional torts, strict liability, or reckless negligence
in a contributory negligence jurisdiction, if plaintiff could prove that the defendant was recklessly negligent, could plaintiff still recover?
yes
what is the last clear chance doctrine?
Plaintiff asserts that the defendant had the last clear chance to avoid the situation
is the last clear chance doctrine a common defense for all torts?
no,it is a defense relating to contributory negligence
In a contributory negligence jurisdiction, was assumption of risk a complete bar to recovery?
yes
If the defendant is claiming expressed assumption of risk, what can the plaintiff try to prove to recover for negligence?
1. that he didnt know he was signing a release
2. the accident was not within the scope of the release
3. the release was unenforceable
what are the requirements to justify public policy under expressed assumption of risk?
1. equality of bargaining power
2. legislature has passed laws about this sort of activity
3. necessity to the public
4. open to the general public
what does implied assumption of risk require?
1. actual knowledge of the particular risk
2. appreciation of its magnitude
3. voluntary encountering of the risk. Cant assume the risk if you dont know about it.
what is the barf for implied assumption of risk?
did the plaintiff voluntarily enounter a riskthat she knew and appreciated?
what are the two types of implied assumption of risk?
1. primary-defendant had no duty in the first place
2. secondary- defendant owed a duty, defenant responds that the plaintiff assumed the risk
What is comparative negligence?
reduces plaintiffs recovery by the percentage of fault attributable to the plaintiff as long as the plaintiffs fault is not as great as the defendants.
In regards to comparative negligence, can one still use the defense of last clear chance?
no, it is no longer needed. you may take it into consideration to determine ercentage of fault, but its not an affirmative defense anymore
what is joint tortfeasors?
each of several tortfeasors is liabile jointly with the others for the amount of the judgment against them, and that each of is also individually liable for the full amount. The plaintiff can collect from any one of them or the group
Has joint and several liability been retained in comparative negligence jurisdictions?
yes
what are the three modern situations where the doctrin of joint and several liability apply?
1. jointly created risks
2. defendants have a common duty to the plaintiff and each of them are negligent or one of the defendants is negligent and the other is held vicariously liable
3. concurrent negligent parties: when you take away either of the defendants acts, there is no negligence. one divisible injury.
what is the barf for express assumption of risk?
it requires actual knowledge of the particularrisk, appreciation of its magnitude, and voluntary encountering the risk
what is the collateral source rule?
If someone gets the benefit from a source that is collateral to the negligence (i.e., insurance coverage from somewhere else) it is not deducted from what Plaintiff can get from Defendant (because premiums weren’t paid to benefit Defendant). But, you probably will have to pay the insurer back when you collect from Defendant. (CA does not recognize the Collateral Source Rule.)
what is vicarious liability for intentional torts?
an employer may be held liable for the intentional torts of his employee when they are reasonably connected with the employment and so with its "scope". when the employee acts on purely personal motives, he is considered to have departed from his employment and the master is not liable
Generally, are employers responsible for the acts of their independent contractors?
no
May an employer be negligent in the hiring of an independent contractor?
yes
What is vicarious liability?
liability that a supervisory party bears for the actionable conduct of a subordinate or associate because of the relationship between the two parties
what is the doctrine of respondeat superior?
an employer will be held liable for the negligence of his employee only if it is committed while the employee is acting within the scope of his employment.
how can it be asertained that an employee is acting within the scope of his employment?
1. he is doing something in furtherance of the duties he owes to his employer;
2. where the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities.
Can an employer be held liabl for vicarious liability concerning intentional torts?
an employer may be held liab le for the intentional torts of his employee when they are reasonable connected with the empllyment and so with its "scope"
what is the defination of a non-delegable duty?
a duty non capabl of being entrusted to anothers care
what are some examples of non-delegadable duty?
1. Those imposed by a public authority as a condition of granting a franchise;
2. The duty of a condemning agent to protect a severed parcel from damage;
3. The duty of a general contractor to construct a building safely;
4. The duty to exercise due care when an independent contractor is employed to do work which the employer should recognize as necessarily creating a condition involving an unreasonable risk of bodily harm to others unless special precautions are taken;
5. The duty of landowners to maintain their property in a reasonably safe condition;
6. To comply with applicable safety ordinances; and
7. The duty of employers and suppliers to comply with safety provisions of the Labor Code.
what is the definition of a delegable duty?
the act of entrusting another with the authority or empowering another to act as an agent or representative.
what are the elements of a joint enterprise?
1. an agreement, express or implied among members of the group
2. a common purpose to be carried out by the group
3. a pecuniary interest in that purpose among the members
4. an equal right to a voice in the direction of the enterprise that gives an equal right of control
5. has to be a commercial enterprise (most crucial element)
what are the three contexts of strict liability
1. animals
2. abnormally dangerous activities
3. products
what factors are looked at to determine if something is an abnormally dangerous activity?
1. the risk of harm was great
2. the harm that would ensue if the risk materialized could be great
3. cant be eliminated by reasonable care
4. inappropriate to the area in which the activity took place
5. not common ussage
6. some utility to society
Is it up to the judge or the jury to decide whether an activity is abnormally dangerous?
its up the the court (judge)
what are some activities subject to strict liability?
1. Toxic chemicals and inflammable liquids
2. Pile driving
3. Crop dusting
4. Poisonous Gases
5. Rockets
6. Fireworks display
7. Hazardous waste disposal site
8. Oil wells
9. Water Escape
what is the barf for strict liability (abnormally dangerous activites)
defendant engaged in an activity, which has been identified as an abnormally dangerous activity, and it caused actual and legal damages to plaintiff
what is vertical privity?
the stream of distribution of a product
what is horizontal privity?
when bystanders use the product.
what is the three theories used in regards to products liability?
1. strict liability in tort (or strict products liability)
2. negligence
3. Warranties
what is the barf in regards to strict liability in tort?
a commercial supplier who puts a product in the stream of commerce in a defective condition unreasonably dangerous will be liable for the injuries cause by that product.
Does someone have to be a commercial seller to be subject to strict liability?
yes
generally, is a manufacturer liable for injuries resulting from abnormal or uninteded use of his product?
no if such use was not reasonably foreseeable
true or false: is the fundamental difference between strict products liability and negligence that if the manufacter puts a product in sht stream of commerce with a defect, every person in that chain of commerece is also liable?
yes
What is the barf for defamation?
it involves a false statement either intentionally or negligently published to a third party is slander, slander per se or libel that attaches to the plaintiff and harms his reputation or excites negative feelings in a segment of right thinking people. depending on the status of the plaintiff, he must prove the defendants state of mind as to the truth or falsity of the statement
what is false light?
a false statement made about the plaintiff to a wide segment of people which a reasonable person would find highly offensive
what is a defamatory statement?
discourages a respectable segment of right thinking persons from associating with a person to whom it attaches and harms his reputation or excites negative feelings about him
what is new york times malice?
a defamatory messge published about a public figure is privileged unless the defendant knew the statement was false or entertained serious doubts about the truth and acted in reckless disregard for the truth
what is common law malice?
willful malicious with the desire to injure
what is libel?
it is a defamtory statement which is written or printed matter of some permanent form. most jurisdictiions award presumed damages for libel, no proof required
what are the four types of slander per se?
1. improper business or professional conduct
2. involvement in a crime involving moral turpitude
3. loathsome disease
4. unchasity of a women or sexual misconduct of either gender
what is slander?
it is a defamatory statement that is not preserved in a permanant form, normally a spoken statement, In order to recover damages a plaintiff must prove financial damages for slander
what are the absolute privileges?
1. judicial
2. legislative
3. executive
4. spouses
what are the qualified privileges?
1. common/public interest
2. 3rd party interest
3. to protect own interest
4. fair and accurate reporting
discuss loss of qualified privileges
1. malice
2. exceeding the scope of the privilege
3. lack of belief/truth
4. excessive publication
If the defendant has established that a qualified privilege exists, does the plaintiff bear the burden of proving the privilege has been lost?
yes
what is an all purpose public figure?
someone who is in the public eye and has notoriety such as a celebrity or a sports figure
what is a limited public figure?
someone who has become a public figure for a particular public or limited issue
what are presumed damages?
what a judge/jury would assume a person would ordinarily lose from this type of harm to his reputation $ money damages, actual damages and if the plaintiff can prove common law malice (willful and malicious w/ the intent to harm the plaintiff, they may get punitive damages
what are actual damages?
this is not limited to $ damages, it can be humiliation, anguish, getting kicked out of club, los of standing in the community
what is intrusion?
entry into the plaintiffs seclusion. can be done electronically (plant a bug) physically or non-physically repeated phone calls) or in person. The information does not need to be published
what is appropriation?
unauthorized use of plaintiffs identity or likeness for defendants' commercial advantage