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243 Cards in this Set

  • Front
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TORTS - 4 COMMON ELEMENTS

Someone has sustained a loss or harm as the result of some act or failure to act by another
1. Intentional Torts
2. Negligence
3. Strict liability
4. Conduct that creates an unreasonable risk of harm
CRIME & TORT DISTINGUISHED
Crime
- social or public harm
- punishment by society.
- prosecution is brought in the name of the people.
Tort
- individual harm or wrong
- liability to the individual.
- brought in the name of the plaintiff
BURDEN OF PROOF - CRIMINAL & CIVIL
Crime - Burden of proof is always the prosecution (state, people, gov) and must be beyond a reasonable doubt of 90-95% certainty.
Civil - Burden of proof is always the plaintiff (John Doe) and must be by a preponderance of the evidence (50%+).
SPECIFIC & GENERAL TORTIOUS INTENT
Specific - Defendant desires to commit the act (torts against property) or result (torts against persons)

General - Defendant knows with substantial certainty that the act or result will occur.
TRANSFERRED INTENT - EXPANDED
The requisite intent can be transferred from one plaintiff to another or from one intentional tort to another.
(Transferred intent does not apply to IIED or conversion).
INTENTIONAL TORTS
Persons - (Assault, Battery, False Imprisonment and IIED).
Real Property - (Trespass to land)
Personal Property (Trespass to chattel & Conversion)
ASSAULT - ELEMENTS (3)
(INTENTIONAL TORTS)
1. intent to cause reasonable apprehension in an apparent ability to cause an immediate battery.
2. Words alone are insufficient (but exceptions if threatening gesture),
3. words must be coupled with action
BATTERY - EXPANDED
(INTENTIONAL TORTS)
Direct or indirect causation - contact with or time passes between act and contact with plaintiff
a. It must be harmful or offensive.
b. Plaintiffs person can include plaintiffs physical body or anything closely connected to the plaintiff
FALSE IMPRISONMENT - ELEMENTS (4)
(INTENTIONAL TORTS)
1. Physical barriers and force, threats of force or failure to release
2. Confinement need only be an appreciable amount of time
3. Plaintiff must be aware of the confinement (at the time of confinement) unless plaintiff is judged by the confinement.
4. must be within a bounded area where movement in all directions, no reasonable means of escape
TRESPASS TO LAND - ELEMENTS (9)
(INTENTIONAL TORTS)
One must intend to cause the ACT that causes entry to land.
2. Not liable for non-volitional acts
3. Actual cause is all that is required
4. Liable for all harm caused
5. Includes direct and indirect invasion
6. Right to possession is sufficient and ownership is not required.
7. Includes all reasonable usable space
8. Damages are inferred and nominal damages will be awarded
9. All other provable damages are recoverable.
TRESPASS TO CHATTEL - ELEMENTS (7)
(INTENTIONAL TORTS)
1. Must intend the act that causes the interference with the possessory interest in chattel
2. Not liable for non-volitional torts
3. Must be the actual cause
4. 2 types of interference include intermeddling (damage to chattel) and dispossession (taking someones book by mistake)
5. Right to possession is sufficient and ownership is not required
6. It includes all tangible property and any intangible property which has been reduced to tangible form
7. Damages are NOT inferred and must be proven
CONVERSION - ELEMENTS (5)
(INTENTIONAL TORTS)
1. Must intend the act that causes the interference
2. Not liable for non-volitional acts
3. Must be the actual cause
4. Severe interference including destruction, severe damage or material alteration to chattel
5. Dispossession is damage in itself
any intangible property that has been reduced to tangible form.
CONVERSION - 2 REMEDIES
(INTENTIONAL TORTS)
a. Damages - fair market value at the time of conversion, or
b. Return of chattel by Replevin (action at law).
WHAT ARE THE INTENTIONAL TORTS - DEFENSES
1. CONSENT
2. SELF DEFENSE
3. DEFENSE OF OTHERS
4. DEFENSE OF PROPERTY
5. RECOVERY OF PROPERTY
6. SHOPKEEPERS PRIVILEGE
7. NECESSITY
8. AUTHORITY OF LAW - PRIVILEGE OF ARREST
9. DISCIPLINE
NAME 4 TYPES OF CONSENT
(INTENTIONAL TORTS DEFENSE)
1. Express consent - words and writing
2. Implied in fact - plaintiffs conduct
3. Implied in law - action necessary to save plaintiffs life (if an immediate action is necessary and plaintiff is injured, unconscious or unable to grant consent and there is no reason plaintiff would not have given consent)
4. Capacity to consent - must have mental capacity
(mentally incompetent, intoxicated, young children
SELF DEFENSE - ELEMENTS (3)
(INTENTIONAL TORTS DEFENSE)
DEFINITION: When a defendant has a reasonable belief that a tort is about to happen to his person, he may use reasonable force to prevent harm
1. Reasonable mistake is allowed, retaliation is not
2. Majority rule says there is no duty to retreat and minority rule states to retreat if possible to safety
d. Reasonable force is allowed
3. There is no liability for accidental injuries to third parties
WHAT ARE 3 THE DEGREES OF NEGLIGENCE?
Slight - Failure to use great care
Ordinary - Failure to use reasonable care
Gross - Failure to exercise even slight care
WHAT IS THE GENERAL STANDARD OF CARE?
Reasonable, prudent person standard with Physical characteristics taken in to considerate, but not mental characteristics
WHAT MUST A NEGLIGENCE CLAIM SHOW?
Duty
Breach
Factual Causation
Legal/Proximate Causation
Damages
HOW ARE DAMAGES QUANTIFIED for NEGLIGENCE?
WHAT ARE THE DAMAGES INTENDED TO DO?
(NEGLIGENCE)
They are quantified by General Damages and Special Damages

To place the claimant in the position that it would have been had the tort not taken place.
WHEN DOES A PERSON HAVE AFFIRMATIVE DUTY OF CONTROL OF THIRD PERSON ?
3 A's
i. Actual ability to control a persons actions
ii. Authority to control a persons actions
iii. Awareness that the person is likely to commit acts that would require exercise of this control
WHAT IS A WRONGFUL DEATH CLAIM?
Wrongful death is a claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives as enumerated by statute.
VICARIOUS LIABILITY
Strict form of secondary liability under common law.
It is the responsibility of the superior for the acts of their subordinates or of any third party that had the authority, ability and awareness to control the activities of a violator
NO DUTY RULE - IIED
(NEGLIGENCE)
If the PLAINTIFF acted negligently, and that negligence was the factual and legal cause of damages there is no liability in most claims of emotional distress
BUT FOR CAUSATION
(NEGLIGENCE)
A cause and effect relationship -did an injury result from a particular cause.
WHAT DO GENERAL DAMAGES & SPECIAL DAMAGES COMPENSATE FOR?
General damages - compensates the claimant for the non-monetary aspects of the specific harm suffered.

Special damages - compensate the claimant for the quantifiable monetary losses
DEFAMATION (DEFINITION)
(What are the 2 types)
DEFINITION: A communication of a false statement that harms the reputation of an individual, business, product, group, government, religion or nation.
1. Slander - Spoken defamation
2. Libel - Defamation in other media such as printed words or images
STRICT LIABILITY (DEFINITION)
Liability without fault & Absolute Liability
- If you did the act you are guilty.
(Strict liability exists in either crime or torts).
WHO ARE STILL LIABEL FOR THEIR INTENTIONAL TORTS?
Minors
Insane Persons
Mistaken Persons
WHAT ARE THE 3 RULES AS FAR AS RECOVERY OF PROPERTY?
RECOVERY OF PROPERTY
1. On Wrongdoers Land - Owner is privileged to enter and reclaim reasonably after first making the demand
2. On Land of innocent party - Owner may enter and reclaim after reasonable notice of the presence of the chattel. Will be responsible for damages caused by entry.
3. On Land through Owners fault - no privilege to enter and may recover only through legal process
SHOPKEEPERS PRIVILEGE (DEFINITION)
If shopkeeper reasonably believes that a person committed the theft they may use reasonable force to detain for a reasonable time after a reasonable investigation (no longer than 30 minutes)
Name 2 Types of NECESSITY
Public Necessity - Act for the public good, not liable for any injury
Private Necessity - If solely for the benefit of a person or property, liable for any injury
WHAT ARE THE RULES FOR A POLICE OFFICER MAKING AN ARREST?
1. Warrant must be valid
2. Person arresteds name must be on warrant
3. Proper Procedure must be used in arrest
WHO ARE OWED A DUTY OF CARE?
Foreseeable plaintiffs
WHAT IS THE GENERAL STANDARD OF CARE?
(DUTY)
A reasonable prudent person with physical characteristics taken in to consideration (reasonably prudent blind person). Mental characteristics are not taken in to consideration
WHAT IS THE SPECIFIC STANDARD OF CARE
(DUTY)
Custom or usage MAY be used to establish a standard of care
(does NOT control question whether conduct amounted to negligence)
WHAT IS THE STANDARD OF CARE FOR CHILDREN?
Held to a standard of child of like age, education and intelligence UNLESS engaging in adult activities
WHAT IS THE STANDARD OF CARE FOR PROFESSIONALS?
Required to possess the knowledge and skill of a member of the profession in good standing.
(Specialists higher standard)
WHAT IS REQUIRED OF A DOCTOR PRIOR TO TREATING A PATIENT?
Informed consent - A doctor has a duty to disclose risks of treatment to enable patient to make an informed consent.
WHAT IS THE STANDARD OF CARE FOR PAYING v. NON PAYING AUTOMOBILE GUESTS?
Non paying - Driver must warn of known defects and drive with reasonable care
Paying - Driver must ALSO make reasonable inspections for dangerous conditions
WHAT DOES THE GUEST STATUTE STATE?
One is only liable to non-paying passengers for reckless tortious conduct (not often on bar)
WHAT IS THE STANDARD FOR COMMON CARRIERS and INNKEEPERS?
A duty to use reasonable care to aid or assist passengers and guests to prevent injury to them by third persons
- held liable for slight negligence
WHAT IS THE STANDARD FOR A BAILOR?
a. Inform of known dangerous defects in the chattel
b. If for hire, inform of what he knows or should have known
WHAT IS THE STANDARD FOR BAILEE If BENEFIT OF Bailor, Bailee and Mutual
a. If benefit of bailor - Slight care
b. If benefit of bailee - Great care
c. Mutual - reasonable care
WHAT IS THE STANDARD OF CONTROL OF THIRD PERSONS - (CHILDREN)
Parents are not vicariously liable for the torts of their minor children UNLESS a statute provides otherwise.
(child could get sued, but you can go after parents for negligence)
NAME THE 3 ELEMENTS OF LEARNED HAND'S FORMULA
1. Burden - B (to take adequate precaution)
2. Probability of harm - P
3. Gravity of harm or loss - L
HOW DO YOU CALCULATE LEARNED HANDS TEST FOR NEGLIGENCE (BREACH OF DUTY)?
If BURDEN (B) is LESS THAN PROBABILITY x GRAVITY
(PxL) - then a breach of duty due to unreasonable behavior
WHAT DOES A VIOLATION OF NEGLIGENCE PER SE STATUTE ESTABLISH?
A presumption of duty and breach of duty (still have to show cause).

Compliance with the statute does not establish reasonable care, but may be evidence of due care
WHAT ARE THE EXCUSES OF NEGLIGENCE PER SE?
1. Adequate excuse - compliance would be more dangerous, or beyond defendants control or

2. Sudden Emergency
WHAT SHOULD A FACT DISCUSSION INCLUDE AS FAR AS DETERMINING BREACH?
1. Whether a defendant DID or DID NOT act as a reasonable prudent person
WHAT DOES RES IPSA LOQUITUR MEAN?
The thing that speaks for itself
WHAT 3 THINGS ARE NEEDED TO PROVE RES IPSA LOQUITUR?
a. Accident wouldn't occur without negligence
b. Instrumentality causing injury was in D's control
c. Plaintiff did NOT contribute or cause injury
WHAT DOES NEGLIGENCE PER SE REPLACE?
The more general common law duty of care with a statute specific negligence
WHAT IS REQUIRED FOR NEGLIGENCE PER SE?
a. A statute provides for criminal penalty
b. the statute clearly defines the standard of conduct
c. the plaintiff is within the protected class and
d. the statute was designed to prevent the type of harm suffered by plaintiff
ACTUAL CAUSE - WHICH WAYS CAN YOU FULFILL CAUSATION
a. But 4 test
b. Substantial Factor test
Concurrent causes (Multiple insufficient causes or multiple sufficient causes)
c. Multiple negligent parties but only one caused harm
CONCURRENT CAUSES - Multiple insufficient causes
The BUT 4 test works
- Negligence of one party alone does not work, but combined it works (multiple actors)
- Each tortfeasor is responsible
CONCURRENT CAUSES - Multiple sufficient causes
The BUT 4 test does NOT work
-Substantial factor test is applied
MULTIPLE NEGLIGENT PARTIES - One caused the harm
a. Burden of proof shifts to the defendants
b. any defendant is fully liable for their proportional share
c. defendant can avoid liability if defendant can prove they were not the cause
PROXIMATE/LEGAL CAUSE - WHICH TWO ELEMENTS?
1. Direct Cause - no intervening act - all direct causes are proximate causes
2. Indirect cause - intervening act- liable if foreseeable
DEPENDENT INTERVENING ACTS - FORESEEABILITY (8)
a. Normal forces - natural & normal reactions created by defendants negligence - almost always foreseeable
b. Medical malpractice
c. Subsequent accident
d. subsequent disease
e. Negligence of rescuers
f. Escape forces
g. Effort to protect person or property
INDEPENDENT INTERVENING ACTS - WOULD OCCUR IF YOU WERE THERE OR NOT (6)
a. Independent actions rather than natural responses or reactions - MAY be foreseeable
c. Negligent acts of 3rd persons foreseeable
d. Intentional torts of 3rd persons are usually NOT foreseeable
e. Criminal acts for 3rd persons are usually NOT foreseeable
f. Acts of God - Storms, floods, weather conditions are foreseeable (earthquakes, lightning are not)
WHAT IS THE MAJORITY RULE AS FAR AS FORESEEABLITY?
The Majority Rule is that the Plaintiff must be with the foreseeable zone of danger.
ARE RESCUERS FORESEEABLE PLAINTIFFS?
Yes "Danger invites rescue"
JOINT & SEVERAL LIABILITY (DEFINITION)
When two or more tortfeasors are either acting in concert or the injury is indivisible, then each tortfeasor is jointly and severally liable.
WHO IS LIABLE AND FOR WHAT UNDER J&S LIABILITY?
All parties acting in concert are liable for the full amount
WHAT HAPPENS TO PLAINTIFF IF THEY ARE CONTRIBUTORY NEGLIGENT?
They are barred from recovery
COMPARATIVE CONTRIBUTION - MAJORITY RULE
WHAT IS THE AMOUNT OF LIABILITY?
Comparative negligence is now in a majority of jurisdictions.
You have to pay the % that you are liable for
DOES COMPARATIVE NEGLIGENCE ELIMINATE J&S LIABILITY?
WHY?
No
Cannot be made whole if you cannot collect from all if comparative negligence.
WHAT IS SATISFACTION?
Full payment by one of the tortfeasors in satisfaction of the judgments
WHAT CAN BE APPLIED IF SOMEONE IS WILLFUL AND WANTON?
Punitive damages
CAN A PERSON WHO HAS BEEN SATISFIED IN FULL BRING AN ACTION AGAINST A DIFFERENT DEFENDANT?
NO
WHAT IS A RELEASE
A surrender of plaintiffs cause of action through contract or agreement, one tortfeasor is being released from liability
WHAT IS THE PROBLEM WITH MARY CARTER AGREEMENTS?
That it creates an environment where if one defendant is released by plaintiff, he may have been encouraged by plaintiff to testify against another defendant.
WHAT IS THE MAJORITY RULE AS FAR AS RELEASE?
Majority of states hold that a release does NOT release any other tortfeasors unless it is expressly provided for in the release (In previous Common law release of one was releasing all others)
WHAT HAPPENS TO OTHER TORTFEASORS LIABILITY IF CONSIDERATION IS PAID BY ANOTHER?
It will be reduced by the amount of consideration already paid
WHAT IS THE GENERAL RULE AS FAR AS DUTY TO ACT?
There is no duty to act
WHAT ARE THE EXCEPTIONS AS FAR AS DUTY TO ACT?
PCCSCP
1. Parent/child
2. Contractual
3. Statutory
4. creation of peril
5. Preclusion of others
6. assumption of duty by acting
LIST THE SPECIFIC STANDARD OF CARE (9)
CECPACBOC
Custom or usage
Emergency situations
Children
Professionals
Automobile guest statutes
Common carriers and innkeepers
Bailments
Control of third persons
Owners and Occupiers of land
AS FAR AS LANDOWNERS (Natural and Artificial conditions) - WHAT ARE THE EXCEPTIONS WHICH MAY MAKE THEM LIABLE?
Natural - duty to take reasonable precautions for known or should have known about defective trees

Artificial - Damages caused by unreasonably dangerous artificial conditions and protect persons passing by property
HOW DOES COMPARATIVE CONTRIBUTION WORK?
1. Defendant pays proportional Shares relative to their fault
WHAT IS THE GENERAL RULE AS FAR AS PARTIAL REIMBURSEMENT (2 elements)
Allows any defendant that pays MORE than this share of damages to recover contribution from other tortfeasors
THE COMMON LAW RULE IS THAT THERE CAN BE NO CONTRIBUTION WHEN...
Joint tortfeasors
CONTRIBUTION CAN ONLY BE RECOVERED FROM PARTY THAT WOULD HAVE BEEN...
Liable to the original plaintiff
INDEMNIFICATION
1. Full reimbursement
2. Shift the loss among tortfeasors
3. Contractual indemnification - party contractually promises to indemnify another
NAME 3 CATEGORIES OF OFF PREMISE INJURIES
(Owners and Occupiers of land)
ANA
a. Natural conditions on land
b. Artificial conditions on land
c. Activities on land
ACTIVITIES ON LAND (causing injuries off land) (Off Premise injuries)
DUTY AND EXCEPTION
FOR OWNER AND OCCUPIERS ARE
Duty -
a. Reasonable care for activities
b. control the conduct of others as to avoid unreasonable risk
ON PREMISE INJURIES
DUTY
FOR OWNERS AND OCCUPIERS ARE?
a. Unknown trespasser - No duty
b. Discovered/Anticipated tp - reasonable care to warn of or make safe non obvious dangerous artificial conditions ( no duty for natural conditions)
WHAT DUTY OF CARE DO EASEMENT HOLDERS HAVE?
TO use reasonable care not to harm a trespasser
WHAT DUTY OF CARE IS OWED BY LANDOWNERS TO CHILDREN TRESPASSERS?
Ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on property
WHAT ARE THE 5 ELEMENTS PLAINTIFF NEEDS TO SHOW IN CLAIM FOR LACK OF PROTECTION FOR CHILD TRESPASSERS?
1. Knows or should have known of dangerous condition
2. Knows/should know that children likely to trespass
3. condition is likely to cause serious injury
4. Children are unable to appreciate the risk
5. Burden of remedy is slight compared to risk
PURPOSE OF LICENSEE (SOCIAL GUESTS) and DUTY by OWNER to LICENSEE
Licensee enters after express or implied permission for own purpose
Duty - Owner has duty to warn or make safe KNOWN dangerous conditions
(NO Duty to inspect or repair - can warn)
PURPOSE OF INVITEE
TYPES OF INVITEE AND
DUTY by OWNER to INVITEE
Invitee enters after express or implied permission for landowners benefit
Business invitee & Public invitee
Duty to inspect, warn of or make safe known or should have known conditions
WHAT IS A SPECIAL INVITEE?
Someone who serves some purpose of possessor, and comes in during normal business hours
WHAT IS THE FIRE FIGHTERS RULE?
Police and fireman are considered licensees because of public policy, assumption of risk with the nature of their profession and workmen's comp provisions
WHEN CAN A PERSON LOSE STATUS AS AN INVITEE?
If he exceeds the scope of his invitation and goes in to a portion of the land where invitation was not extended - results in becoming a licensee or trespasser
WHAT IS THE MODERN TREND AND MINORITY RULE FOR LICENSEE AND INVITEE?
Do away with classifications and instead use reasonable person under the circumstances
WHAT ARE THE DUTIES OF LESSEE OF REALTY?
A general duty to maintain premises
WHAT ARE THE DUTIES OF LESSOR OF REALTY?
Lessor must warn of existing defects of which he is aware or has reason to know, and which he knows lessee is not likely to discover on a reasonable inspection
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (DEFINITION)
A duty on the part of the defendant to avoid infliction of emotional distress, which is breached when the defendant negligently creates a foreseeable risk of physical injury to the plaintiff
NIED (ELEMENTS) 3
What are the special situations?
1. Defendant was negligent
2. Plaintiff was with zone of danger
3. Suffered physical injury from distress
(special situations were no physical injury necessary is erroneous report of death or mishandling of corpse)
WHAT IS THE BYSTANDER EXCEPTION TO TARGET ZONE FOR NIED ?
When
a. plaintiff and injured person are closely related
b. plaintiff is present at the scene of the injury; and
c. plaintiff perceived or observed the event
COMPENSATORY DAMAGES
To
a. Restore plaintiff to pre-injury status as far as possible
b. only remedy to be made whole is money
c. All past present and future damages must be in one lump sum based on one verdict in one lawsuit
d. judicial review of jury verdict amounts is relatively limited
ECONOMIC INJURY ONLY
a. No recovery allowed in Negligence
b. must have actual physical injury (person or property)
SPECIAL DAMAGES
Damages for medical expenses, economic losses such as lost earnings, impaired future earnings, disability and disfigurement
GENERAL DAMAGES
Non economic losses such as pain and suffering
AVOIDABLE CONSEQUENCES
a. Plaintiff has duty to mitigate damages
b. Defendant will NOT be liable for damage that COULD have been avoided
PHYSICAL HARM TO PROPERTY
a. Damage - cost to repair
b. Destruction - fair market value at time of incident
PUNITIVE/EXEMPLARY DAMAGES
If conduct was willful and wanton, reckless or malicious
WHAT ARE NON RECOVERABLE ITEMS?
a. Interest from date of damage
b. Attorneys fees
COLLATERAL SOURCE RULE
Damages will not be reduced because plaintiff received benefits from other sources. (IE Vet going to VA)
REMITTITUR - (JUDICIAL CONTROL
Award is so excessive as to shock the conscience. Plaintiff given choice to REDUCE the award or new trial
ADDITUR
So grossly inadequate that a miscarriage of justice has occurred. Given choice of greater reward or new trial.
CONTRIBUTORY NEGLIGENCE
When plaintiff is a contributing cause of his injuries, it will be a complete bar to recovery.
a. defendant must prove by preponderance that plaintiff was contributorily negligent
b. If plaintiff was negligent, he will not recover
c. Same standard as for ordinary negligence
d. Contributory negligence per se is allowed. However may not be used against those in protected class if class is based on incapacity
EXCEPTION TO CONTRIBUTORY NEGLIGENCE
Last Clear Chance Doctrine -
Plaintiffs contributory negligence will not be a bar to recovery and defendant will be liable if plaintiff can say that the defendant has the last clear chance to avoid injury and did not.
a. Defendants negligent act occurs after plaintiffs contributory negligent act and
b. Defendant could have avoided the accident with due care
(Not applicable in comparative negligence jurisdictions)
SURVIVAL ACTION
Parties proceed as if all parties are alive. Awards come from pro into decedents estate -( subject to creditors)
All defenses apply
They include actions involving torts to property and torts resulting in personal injury - except intangible personal interest
WRONGFUL DEATH
Wrongful death grants recovery for pecuniary injury resulting to the spouse or other beneficiaries defined by statute giving priority of classes over others.
a. spouse and minor children
b. adult children, then
c. siblings and parents
WHAT CAN DECEDENTS CREDITORS RECOVER IN A WRONGFUL DEATH SUIT?
Nothing
WHAT RECOVERY IS ALLOWED IN WRONGFUL DEATH SUIT?
a. loss of support
b. loss of companionship/consortium
c. no recovery for pain and suffering of decedent
WRONGFUL BIRTH
Available when defendant denies mother the choice to abort, thus obligating a child to a wrongful life - What is the remedy??
Similar to breach of duty of informed consent (doctor)
CONTRIBUTORY NEGLIENCE - DEFINITION
(DEFENSES)
When plaintiff is a contributing cause of his injuries, it will be a complete bar to recovery.
COMPARATIVE NEGLIGENCE - DEFINITION
(DEFENSES)
When plaintiff is a contributing cause of his injuries, plaintiffs recovery will be reduced in proportion to plaintiffs fault
NAME THE DIFFERENT TYPES OF COMPARATIVE NEGLIGENCE AND ITS RULES OF RECOVERY
(NEVER ON ESSAY, NOT ON BABY BAR, MCQ on BAR)
1. Comparative Negligence (virtually in all states)
2. Pure Comparative Negligence - Recovery will be reduced by the percentage of fault regardless if plaintiffs negligence exceeds the defendants (NY and CA)
3. Partial Comparative Neglience - If plaintiffs degree of fault is 49% or less, then plaintiff can recover (if equal fault noone can recover under this)
4. No More Serious - If plaintiffs percentage of fault is more than 50%, plaintiff cannot recover
WILL COMPARATIVE NEGLIGENCE REDUCE PUNITIVE DAMAGES?
NO
ASSUMPTION OF RISK
(DEFENSES)
There is no compensable injury if you submit yourself to the risk
a. plaintiff knew the risk
b. voluntarily assumed the risk
c. Total bar to recovery
WHO NEVER VOLUNTARILY ASSUMES THE RISK?
Rescucers
HOW CAN PLAINTIFF ASSUME RISK?
Impliedly or Expressly
EXCULPATORY CLAUSES & PUBLIC POLICY
Exculpatory clauses – certain disclaimer forms will not be upheld by courts due to public policy
WHAT IS THE MAJORITY RULE AS FAR AS INTRA FAMILY IMMUNITY?
A majority of jurisdictions have abandoned husband wife and parent child immunity
WHAT HAVE STATES THAT STILL EMBRACE INTRA FAMILY IMMUNITY LIMITED ITS APPLICATION TO?
No immunity for property damage, intentional torts, negligence outside of family relationships
(Immunity only applies to husband-wiife and parent-unemancipated child)
WHAT IS THE MAJORITY RULE AS FAR AS CHARITABLE IMMUNITY?
The majority of jurisdictions have eliminated charitable immunities
WHAT IS THE MAJORITY RULE AS FAR AS GOVERNMENTAL IMMUNITY
The Federal and State and local governments have substantially waived their immunity to the same extent as the federal government (Immunity is not waived for acts that are discretionary)
VICARIOUS LIABILITY (DEFINITION)
When a party is liable for the tortious conduct of another because of the relationship between the tortfeasor and the party to whom the liability is imputed
What is the general rule as far as respondent superior/employer?

What is it usually limited to?
Employer is liable for the torts of the employee committed within the scope of employment

Negligent conduct
ARE EMPLOYERS LIABLE FOR INTENTIONAL TORTS OR CRIMINAL ACTS?
It is generally considered to be outside the scope of employment (if foreseeable then they are liable)
WHAT ARE THE EXCEPTIONS TO WHERE AN EMPLOYER CAN BE LIABLE FOR CRIMINAL AND TORTIOUS ACTS?
a. Force is authorized in employment (bouncer)
b. Friction is generated by employment
c. Servant is furthering business of master
FROLIC AND DETOUR - DEFINE EACH AND STATE IF LIABILITY BY EMPLOYER
Frolic - Substantial deviation from the employment for personal business - Employer NOT liable
Detour - Sufficiently related to employment to fall within scope - Difference in time and distance matters
EMPLOYER IS LIABLE
IS AN EMPLOYER LIABLE FOR EMPLOYEES THAT ARE COMING AND GOING?
ARE THERE EXCEPTIONS?
NO

If an event at the place of employment may have caused a subsequent accident
TORT (DEFINITION)
A civil wrong, other than breach of contract for which the law gives remedy
BATTERY (DEFINITION)
A volitional act by defendant that intentionally causes a harmful or offensive contact with Plaintiffs person
ASSAULT (DEFINITION)
Act by defendant that intentionally causes a reasonable apprehension in plaintiff of immediately receiving a battery
FALSE IMPRISONMENT (DEFINITION)
Act by defendant that intentionally causes the plaintiff to be confined to a bounded area
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (DEFINITION)
Extreme, outrageous conduct by defendant that intentionally, or recklessly causes a severe emotional distress in plaintiff
TRESPASS TO LAND (DEFINITION)
An intentional act by defendant that causes a physical invasion of plaintiffs land
TRESPASS TO CHATTEL/CONVERSION (DEFINITION)
An intentional act by defendant that causes an interference with plaintiffs possessory interest in chattel. If so severe as to warrant a forced sale a conversion may apply.
CHATTEL (DEFINITION)
All tangible property and any intangible property that has been reduced to tangible form
SELF DEFENSE (DEFINITION)
When a defendant has a reasonable belief that a tort is about to happen to his person, he may use reasonable force to prevent harm
DEFENSE OF OTHERS (DEFINITION)
When defendant has a reasonable belief that a tort is about to happen to an innocent third party he may use reasonable force to prevent such harm
DEFENSE OF PROPERTY (DEFINITION)
When defendant has a reasonable belief that a tort is about to happen to his property, he may use reasonable force to prevent such harm
RECOVERY OF PROPERTY (DEFINITION)
When a person intends to recover his property and a timely demand has been requested, he may be privileged to enter wrongdoers land and reclaim them at a reasonable time and in a reasonable manner.
(if on land of an innocent party he may enter after giving notice and in a reasonable time and in a peaceful manner).
(if on land through owners fault - only through legal process)
NECESSITY (DEFINITION)
A person may interfere with the real or personal property of another where it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that seeks to avert it.
AUTHORITY OF LAW (DEFINITION)(
If there is a current felony or breach of peace, a police office or private citizen may make a warrantless arrest if the current felony or breach of peace is being committed in his presence or if he reasonably believes it is about to occur in his presence
DISCIPLINE (DEFINITION)
Parent or teacher may use reasonable force in disciplining children
NEGLIGENCE (DEFINITION)
A duty to conform to a standard of conduct that is breached by the defendant and the breach is the actual and proximate cause of plaintiffs damages
CAUSATION (DEFINITION)
The act or the force set in motion by defendant must have caused, or is a substantial factor in bringing about the result.
PUBLIC NUISANCE (DEFINITION)
An illegal act causing harm to members of a particular community rather than to any individual
PRIVATE NUISANCE (DEFINITION)
A nuisance that interferes with a persons interest in and private use and enjoyment of their land
INVASION OF PRIVACY (DEFINITION)
The wrongful intrusion by individuals or the government into private affairs with which the public has no concern
ACT OF GOD (DEFINITION)
A manifestation especially of a violent or destructive natural force, such as lightning strike, earthquake that is beyond human power to cause, prevent or control
PRODUCT LIABILITY (DEFINITION)
Manufacturers, distributors, suppliers, retailers and others who make products available to the public are held responsible for the injuries those products cause. It is traditionally limited to tangible personal property.
BREACH (DEFINITION)
When defendant breached the relevant standard of care.
DUTY (DEFINITION)
Engaging in conduct that includes a risk of harm to others imposes a DUTY of reasonable care
LEGAL/PROXIMATE CAUSE (DEFINITION)
Proximate legal causation is used to link negligence to liability for an injury caused by an accident. It is legally sufficient to result in liability.
TRANSFERRED INTENT (DEFINITION)
When the defendant intends to commit one tort, but instead (or in addition) commits a different tort to the same plaintiff and or commits the same and or different tort to a different plaintiff
NEGLIGENCE PER SE (DEFINITION)
A statute specific duty that replaces the more general common law duty of care, if the statute provides for criminal penalty, which defines a standard of conduct, and plaintiff is within a protected class and the statute was designed to prevent the harm suffered
RES IPSA LUQUITOR (DEFINITION)
The thing speaks for itself -
Accident would not normally occur unless someone was negligent, the instrumentality was under sole control of the defendant, and plaintiff did not cause or contribute to the injury
INDEPENDENT CONTRACTOR (DEFINITION)
An independent contractor is engaged to perform a service for another according to his own methods and manner; and is free from control and direction of his employer in all matters connected with the performance of the service except as to the results.
IS AN EMPLOYER LIABLE FOR THE TORTS OF INDEPENDENT CONTRACTORS?
EXCEPTIONS?
NO

the independent contractor is engaged in inherently dangerous activities, or he duty, because of public policy considerations, is non delegable.
HOW CAN AN EMPLOYER BE DIRECTLY LIABLE?
a. Negligent hiring
b. Negligent training and
c. Negligent supervision
JOINT ENTERPRISE (DEFINITION)
When two people are in a business venture and have a common purpose and mutual right of control, then each may be vicariously liable for the tortious acts committed by the other as long as the tort is committed within the scope of that venture
PARTNERSHIP (DEFINITION)
When two people are in a business for profit, then each may be vicariously liable for the tortious acts committed by the other partner as long as the tort is committed within the scope of the partnership.
ARE BAILORS VICARIOUSLY LIABLE FOR THE TORTIOUS CONDUCT OF HIS BAILEE?
AUTOMOBILE OWNERS?
The General Rule is NO
Automobile owners are not vicariously liable for the tortious conduct of another person driving his vehicle.
WHAT ARE THE 3 EXCEPTIONS TO BAILOR NOT BEING LIABLE?
a. Family Car Doctrine - liable for tortious conduct of immediate family or household members who are driving with the owners express or implied permission
b. Permissive use statute - some states are imposing liability on the owner for damages caused by anyone driving with the owners consent
c. Negligent entrustment: the owner may be liable for her own negligence in entrusting the care to a driver (direct liability NOT vicarious)
ARE SPOUSES VICARIOUSLY LIABLE FOR THE TORTS OF THEIR
SPOUSE?
CZHILD?
a. A spouse is not liable for the torts of his wife
b. Common law: A parent is not vicariously liable for the torts of their child
c. Modernly: most states, by statute, make parents liable for the intentional torts of their minor children up to a certain dollar amount.
IMPUTED CONTRIBUTORY NEGLIGENCE (DEFINITION)
A plaintiff will have imputed contributory negligence only where the plaintiff would have been vicariously liable for the negligence by the third party – “both ways test”
WHAT CONTRIBUTORY NEGLIGENCE IMPUTES TO ANOTHER?
1. Contributory negligence of employees will be imputed to the employer
2. Contributory negligence of joint venturer or partner will be imputed to other joint venturer or partners
WHAT CONTRIBUTORY NEGLIGENCE DOES NOT IMPUTE TO ANOTHER?
Contributory negligence of spouse will NOT be imputed to the other spouse
Contributory negligence of parent will NOT be imputed to child
Contributory negligence of child will NOT be imputed to parent
WHAT ARE OWNERS OF TRESPASSING ANIMALS LIABILITY?
Generally, an owner is strictly liable for reasonably foreseeable damage done by trespass of his animals
(1) Typically, farm animals
(2) Exception: cats and dogs
(a) Base animals – no value
(b) Difficult to restrain
(c) Only result in trivial damage
FENCING IN STATUTES
Defendant is not strictly liable for trespassing livestock if defendant attempts to fence in animals (can still be negligent)
(2) However, defendant is strictly liable if defendant does not attempt to fence them in
FENCING OUT STATUTES
(1) Plaintiff properly fences in his land
(2) Defendant will be strictly liable if defendants animal breaks in
TAKING LIVESTOCK TO MARKET
(1) the livestock strays off road and trespasses onto plaintiff’s property
(2) If defendants livestock strays from public road onto plaintiffs private property bordering the public road, defendant will not be strictly liable
(3) If defendants livestock strays from public road onto plaintiffs private property that is not adjacent to public road, defendant will be strictly liable
PERSONAL INJURIES FROM WILD ANIMALS
a. Owner is strictly liable for injuries caused by wild animals, as long as injured person did nothing to bring about injury.
(This includes domestic animals with known dangerous propensities)
PERSONAL INJURIES FROM DOMESTIC ANIMALS
Owner is not strictly liable for injuries caused by non dangerous (domestic) animals. Exception if owner has knowledge of the animal being vicious
ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES (4 ELEMENTS)
Activity must
a. involve risk of serious harm to persons or property
b. cannot be performed with complete safety
c. not commonly engaged-in activity in the community
d. some courts also consider the value of the activity and its appropriateness to the location
WHAT IS THE EXTENT OF LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES?
a. Duty owed is absolute duty to make safe
b. to all foreseeable plaintiffs
c. limited to dangerous animals or ultra hazardous activity
WHICH DEFENSES ARE VALID AND WHICH INVALID FOR ABNORMALLY DANGEROUS ACTIVITIES?
VALID: Assumption of risk and Comparative Negligence
INVALID: Contributory Negligence
PRODUCTS LIABILITY (RULE)
A commercial supplier that puts a defective product into the stream of commerce can be held liable under several theories of product liability.
NAME THE DIFFERENT THEORIES OF DEFECTIVE PRODUCT
1. Manufacturing defect
2. Design Defect
3. Inadequate warning
(the defect must have existed when the products left the defendants control through normal distribution channels)
MANUFACTURING DEFECT
If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect. It is not in the condition that the manufacturer intended it to be.
DESIGN DEFECT

HOW IS IT TESTED?

When all products are the same, but have dangerous propensities, they may be found to have a design defect.
a. Consumer expectation test - failed to perform as safely as an ordinary consumer would expect. (reasonable misuse anticipated)


b. Feasible alternative test: Defendant could have made the product safe without serious impact on the products price or utility.
b. Scientifically unknowable risks: defendant will not be held liable for dangers not foreseeable at the time of marketing.
c. Unavoidably unsafe products: Manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product.

INADEQUATE WARNING
a. Products may be defective as a result of the manufacturers failure to give adequate warnings as to the risk involved in using the product.
b. The danger must not be apparent to users
STRICT LIABILITY (DEFINITION)
An absolute duty owed by commercial supplier not to supply a defective product that is breached by the defendant and the breach is the actual and proximate cause of plaintiffs damages.
WHO ARE THE FORESEEABLE PLAINTIFFS IN STRICT AND NEGLIGENT PRODUCTS LIABILITY?
users, consumers and bystanders (privity is no longer required)
WHO ARE COMMERCIAL SUPPLIERS?
Manufacturer
Wholesaler
Retailer
WHAT IS THE DUTY, BREACH, CAUSATION and DAMAGES FOR STRICT PRODUCTS LIABILITY?
Duty - Absolute duty to not put a defective product in to the stream of commerce
Breach - Occurs when defendant supplies a defective product - no analysis of fault required
Causation - Actual and proximate cause - same as negligence
Damages - Same analysis as negligence
WHICH DEFENSES ARE AVAILABLE FOR STRICT LIABILITY?
a. Assumption of risk: Valid defense
b. Contributory negligence: not a valid defense
c. Comparative negligence: valid defense (reduction of the damages award)
Restatement Second of Torts § 402A - Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who or sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused
to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation
and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
NEGLIGENT PRODUCT LIABILITY (DEFINITION)
Reasonable duty owed by commercial supplier not to supply a defective product that is breached by the defendant and the breach is the actual and proximate cause of plaintiffs damages
WHAT IS MANUFACTURERS DUTY IN NEGLIGENT PRODUCT LIABILITY?
Manufacturer’s duty
(1) Must use reasonable care in design and manufacture of product
(2) must reasonably inspect product before it leaves manufacturer’s control
(3) Superior skill or training of defendant will be considered
WHAT IS DEALERS DUTY IN NEGLIGENT PRODUCT LIABILITY?
Dealer’s duty
(1) If buying from reputable supplier, only cursory inspection is required.
(2) If not a reputable supplier, must
(a) make a reasonable inspection, and
(b) warn plaintiff that product might be defective
BREACH IN NEGLIGENT PRODUCT LIABILITY?
Manufacturing defect: res ipsa loquitur is usually involved
b. Design defect or lack of adequate warning: Supplier knew or should have known of defect and didn’t warn and/or make safe.
HOW DO YOU MEASURE CAUSATION AND DAMAGES IN NEGLIGENT PRODUCT LIABILITY?
Actual and proximate cause, same as negligence
WHAT DEFENSES ARE AVAILABLE FOR NEGLIGENT PRODUCT LIABILITY?
a. Assumption of risk: Valid defense
b. Contributory negligence: Valid defense
c. Comparative negligence: Valid defense (reduction of the damages award)
INTENTIONAL TORTS LIABILITY (DEFINITION)
Commercial supplier supplies a defective product with the desire or knowledge of substantial certainty that it will cause plaintiff a harmful or offensive conduct.
(very rare, usually based on battery)
IMPLIED WARRANTY (DEFINITION)
If goods are sold by a merchant who deals in these types of goods, there is an implied warranty that the goods are generally fit for the ordinary purposes for which the goods are to be used.
IMPLIED WARRANTY FOR FITNESS OR PARTICULAR PURPOSE
Seller knows or has reason to know the purpose and the buyer is relying on the sellers skill or judgment to select suitable goods, then there is an implied warranty that the goods are fit for that particular purpose.
WHO IS IN PRIVITY UNDER AN IMPLIED WARRANTY
All buyers are proper plaintiffs and most states extend protection to buyers family, household and a guest who suffers personal injury.
IMPLIED WARRANTY DISCLAIMERS
a. Must be specific and narrowly construed
b. Limitations on personal injury damage are not enforceable.
HOW DO YOU FIND CAUSATION IN AN IMPLIED WARRANTY CLAIM?
Actual and proximate cause (same as negligence)
EXPRESS WARRANTY
a. Must be communicated orally, in writing or sample model and an affirmation of fact or promise to the buyer, relating to the goods.
b. Privity is not required and disclaimers are valid if they can be read consistently with any express warranties made
DEFAMATION (DEFINITION)
A defamatory statement by the defendant, of or concerning the plaintiff, with publication to a third party, which results in damages to the plaintiff

ARE STATEMENTS OF OPINION DEFAMATORY?

Only if the opinion is based on specific facts or if couching in fact such as "I THINK..."

COLLOQUIUM (DEFAMATION)

Extrinsic facts showed by plaintiff that it could reasonably be interpreted by at least one individual that it is referring to plaintiff

WHICH GROUP DEFAMATIONS ARE VALID AND WHICH ARE LIMITED? (3)

1. All members of small group - each member needs to show it was of or concerning him



2. All members of large group - NOT valid - cant be proven



3. Some members of small group - plaintiff can recover if a reasonable person could determine it was of and concerning plaintiff

PUBLICATION TO A THIRD PARTY - WHAT MUST THE COMMUNICATION BE AND HOW CAN IT BE MADE? (DEFAMATION)

a. to a person who understood it


b. intentionally or negligently

REPETITION (DEFAMATION)

Each repetitition is a separate publication and plaintiff may recover damages for each repetition of the defamatory statement

SINGLE PUBLICATION RULE (DEFAMATION)

Each edition or issue is considered one publicationl; an additional printing will be another publication

WHO IS A PRIMARY PUBLISHER? (DEFAMATION)

Every individual that takes part in making the publication is a primary publisher (Newspaper, TV is as responsible as author or original speaker)

IS A REPUBLISHER LIABLE IF THEY STATE THAT THEY DONT BELIEVE IN THE STATEMENT? (DEFAMATION)

YES

WHO IS A SECONDARY PUBLISHER?

One who is disseminating matter that might be defamatory if they knew or should have known it was defamatory

DAMAGES (DEFAMATION)

1. General or presumed damages - Need not be proven


2. Special Damages - Plaintiff must prove pecuniary loss of effect on reputation

LIBEL (DEFINITION and majority rule on damages)


(DEFAMATION)

A defamatory statement that is recorded in writing or other permanent form


Majority rule is that general damages are presumed and need not be proven (special damages need not be established but plaintiff can prove pecuniary loss if he wishes)

SLANDER and its damages

Spoken defamation


since damage is less permanent than libel, injury to reputation is not presumed. Plaintiff must plead and prove special damages, then the court will presume general damages

WHAT ARE THE 4 CATEGORIES OF SLANDER PER SE (DEFAMATION)

1. Conduct in business - if reflecting plaintiffs abilities in business, damages are presumed


2. Loathsome disease - veneral disease and leprocy


3. Crime involving moral turpitude


4. Unchastity of a woman - statement imputing woman of unchaste behavior

FIRST AMENDMENT CONCERNS - (DEFINITION) CONSTITUTIONAL PROTECTIONS (DEFAMATION)

When the defamation involves a public official or figure, a matter of public concern, or a media defendant, plaintiff must prove, in addition to the common law elements, falut on the part of defendant and falsity of the statement

FAULT ON DEFENDANTS PART


and


WHO ARE THE PLAINTIFFS? (4)


(DEFAMATION)

The type of fault that a plaintiff must prove depends on the status of the plaintiff and or the matter involved


a. Public official - must relate to the officials conduct and malice must be proved


b. Public figure - must relate to the fame or controversy and malice must be proved


c. Private persons - If not a matter of public concern nor media defendant, constitutional restrictions do not apply


FALSITY ( DEFAMATION)

At common law a defamatory statement is presumed to be false. In cases where plaintiff is constitutionally required to prove fault, plaintiff also has the burden of proving falsity

WHAT ARE THE DEFENSES TO DEFAMATION?

1. Consent - complete defense


2. Truth - Plaintiff does not need to prove falsity, defendant may prove truth as a complete defense


3. Absolute Privilege - remarks during judicial proceedings, legislators, federal officials, in broadcasts or between spouses


4. Qualified privilege (can be lost through abuse/malice) reports of official proceedings, in interest of publisher and/or recicipent


(defendant bears the burden to prove privilege)

WHAT ARE THE MITIGATION FACTORS FOR DEFAMATION?

a. Lack of malice, retraction, anger of speaker provoked by plaintiff may be considered


(are not defenses to liability)

TRADE LIBEL (DEFINITION)

A statement disparaging the plaintiffs business, product or services for the purpose of persuading customers not to do business with the plaintiff

HOW ARE DAMAGES PROVEN FOR TRADE LIBEL? (DEFAMATION)

Special damages are required - Must show losss of business/customers

WHICH 4 TORTS ARE UNDER THE UMBRELLA OF PRIVACY TORTS? (DEFAMATION)

A. Appropriation of plaintiffs name or likeness


(Unauthorized use by defendant of plaintiffs name or likeness for their commercial advantage)


B. Intrusion into plaintiffs seclusion (objectionable to reasonable person, plaintiff need not be aware at time of intrusion)


C. False Light - An objectionable publication to the public into a false light (to a reasonable person) 1st amendment limitations apply if its in the public interest


D. Public disclosure of private facts - An objectionable public disclosure by defendant of private facts about plaintiff 1st amendment limitations apply if matter is one of legitimate public interest

HOW ARE DAMAGES QUANTIFIED UNDER INVASION OF RIGHT OF PRIVACY?

Proof of special damages are unecessary, emotional distress and anguish are sufficient damages

WHAT ARE THE DEFENSES TO INVASION OF PRIVACY TORTS?

Consent


Defamation defenses of absolute and qualified privileges


Truth (ONLY FOR FALSE LIGHT)

PRIVATE NUISANCE (DEFINITION)

Substantial, unreasaonable interference with the use or enjoyment of plaintiffs land.


(Judged by the reasonable person standard)

PUBLIC NUISANCE (DEFINITION)

Unreasonable inteference to the health, safety or property rights of the community

WHAT ARE THE REMEDIES FOR PRIVATE AND PUBLIC NUISANCE?

Private Nuisance - Self help abatement is available after notice to defendant and his refusal. May go on land of defendant and stop the nuisance


Public Nuisance - Has to use public officials to abate the nuisance

INTENTIONAL MISREPRESENTATION


(TORTS - MISREPRESENTATION)

1. Misrepresentation of a material fact


a. No duty to disclose except for fiduciary obligations, half truths, didnt know it was false when made and now knows or statement was true at time and now is not


b. Scienter - False or with reckless disregard


c. Inducing reliance to all foreseeable plaintiffs


d. Justifiable reliance - reasonable objective test (reliance on fact almost always justified, opinion is not - unless from someone with skill)


e. Damages - must suffer pecuniary loss and can recover benefit of the bargain damages

NEGLIGENT MISREPRESENTATION


(TORTS - MISREPRESENTATION)

1. Negligent misrepresentation by defendant to plaintiff


a. Plaintiff actually and justifiable relied upon it


b. Damages and defenses same as negligence

MALICIOUS PROSECUTION/WRONGFUL CIVIL PROCEEDINGS

Criminal or Civil Proceedings against plaintiff and termination of their favor


a. Absence of probable cause (either insufficient or didnt believe defendant was guilty)


b. Malice


c. Damages are presumed


d. Prosecutors are immune from liability.

ABUSE OF PROCESS

Defendants use of a legal process for a purpose in which it was not designed and is seeking some collateral advantage outside of the legitimate legal process

TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP

Valid contractual relationship exists between plaintiff and third party and defendant knows of the relationship and intentionally interferes to attempt to terminate relationship


TORTIOUS INTERFERENCE WITH PROSPECTIVE ADVANTAGE

Valid business expectancy between plaintiff and third party without a contract. Includes probable future business relationship that plaintiff has a reasonable expectation of. Plaintiff knows of the expectancy and intentionally interferes to terminate expectancy

DEFENSE TO TORTIOUS INTERFERENCE

Defendant has a justifiable purpose and own business or public interest and used a justifiable method.