Ma Bar Essay & Mbe - Torts

Front 1

What is the PFC for any intentional tort?

Back 1

1. Volitional act by D
2. Intent (either specific intent to bring about spec. circumstances or general intent, knowing with "substantial certainty" that these consequences will result)
3. Causation

Front 2

For which intentional torts do you have to show that D had intent?

Back 2

All but IIED

Front 3

How can intent to commit an intentional tort be shown?

Back 3

either specific intent to bring about spec. circumstances or general intent, knowing with "substantial certainty" that these consequences will result

Front 4

For which torts can transferred intent be invoked?

Back 4

Assault
Battery
False Imprisonment
Trespass to Land
Trespass to chattels

Front 5

What is the rule of transferred intent?

Back 5

Intending to commit a tort against one person but either 1) commits a diff. tort against that person, 2) commits the same tort but against a diff person, or 3) commits a diff tort against a diff person. In any of these, the intent is "transferred"

Front 6

When is incapacity a defense to an intentional tort?

Back 6

it's not

Front 7

How can causation be shown for an intentional tort other than "but for" causation?

Back 7

If d's conduct was a "substantial factor" in bringing about the injury

Front 8

What are the elements of battery?

Back 8

1. harmful or offensive contact
(Offensive = unpermitted by a person of normal sensitivity)
2. to the P's person
(Includes anything the person is holding or touching)
3. Intent
4. Causation

Front 9

What are the elements of assault?

Back 9

1. act by D creating "REASONABLE apprehension" in P (knowledge, not nec. fear)
2. of an IMMEDIATE battery
3. intent
4. causation

Front 10

What are the elements of false imprisonment?

Back 10

1. D commits an act or omission that confines or restrains P
2. to a "bounded area"
3. intent
4. causation

Front 11

When does the "bounded area" element of false imprisonment mean?

Back 11

Means freedom of movement limited in all directions. No REASONABLE means of escape KNOWN to the P.

Front 12

What are the elements of intentional infliction of emotional distress?

Back 12

1. Extreme & outrageous conduct by ∆ ("exceeds all bounds of decency tolerated in a civil society")
2. Intent OR RECKLESSNESS
3. Causation
4. Damages - ∏ suffers severe emotional distress (do NOT need phys. symptoms)

Front 13

What are the hallmarks of "extreme or outrageous conduct" for IIED?

Back 13

- continuous and repetitive conduct
- ∆ is a "common carrier or an innkeeper"
- ∏ is a member of a fragile class of persons (Young children, Elderly people, Pregnant women, SOMETIMES hate speech toward a minority)
- Advance knowledge of a hypersensitivity

Front 14

When can a bystander recover under IIED?

Back 14

either by showing PFC of IIED or by showing:
1) present when injury occurred
2) close relative of injured person
3) D knew both 1 and 2

Front 15

What are the elements of trespass to land?

Back 15

1. physical invasion
2. of land
3. intent (can be intent to simply throw an object, not nec. intent that it goes onto D's land)
4. causation

Front 16

What are the elements of trespass to chattels?

Back 16

1) act by D that "interferes with P's right of possession" in a chattel
2) intent
3) causation
4) damages (don't nec. need damage to the chattel, just damage to the possessory rights)

Front 17

What are the elements of conversion?

Back 17

1) act by D that "interferes with P's right of possession" in a chattel
2) intent
3) causation
4) damages - interference is so serious that it warrants requiring the D to pay the chattel's full value

Front 18

Who can be a plaintiff for conversion?

Back 18

anyone with possession or immediate right to possession of the chattel

Front 19

What are the remedies for trespass to chattels?

Back 19

recovery of actual damages from harm to chattel or lose of use (if dispossession, damages based on rental value)

Front 20

What are the remedies for conversion?

Back 20

Damage award for fair market value of chattel at time of conversion. May instead recover chattel (replevin).

Front 21

What are the major defenses to an intentional tort?

Back 21

1. Consent - express or implied
2. Self-Defense; Defense of others; Defense of property
3. Necessity - public or private
(other ones include privilege of arrest & discipline of kids)

Front 22

For consent to an intentional tort to be valid, what must be true?

Back 22

1) express or implied consent was valid (person had capacity, no fraud/duress)
2) act was within scope of the consent

Front 23

What are the three defense privileges and what must be shown for them to be valid?

Back 23

Self defense, defense of others, defense of property. Must show:
1) timing - tort is now being or about to be committed (hot pursuit where property is ok)
2) reasonable belief that threat is genuine
3) amount of force is proper (no deadly force for property)

Front 24

What is public necessity and what is the legal consequence of it?

Back 24

∆ invades plaintiff's property FOR THE PUBLIC GOOD to avoid "substantially more serious" threatened injury to the injury to P's property. Complete defense.

Front 25

What is private necessity and what is the legal consequence of it?

Back 25

∆ invades plaintiff's property FOR HIS OWN BENEFIT to avoid "substantially more serious" threatened injury to the injury to P's property. D must still pay for any actual damage.

Front 26

What are the elements of defamation for the MBE?

Back 26

1) defamatory language (adversely affects reputation; assertions of fact and sometimes of opinion)
2) "of or concerning" the P
3) publication to a 3rd person (can be negligent; intent not nec.)
4) Damage to P's reputation (standard differs if slander vs. libel)

Front 27

If defamation is a "matter of public concern" what else must P show for the MBE?

Back 27

These are the first amendment concerns:
- falsity of the defamatory language
- fault on the part of D (private figure must show negligence; public figure must show "malice", i.e. knowledge of falsity or reckless disregard for falsity)

Front 28

In MASS, what are the elements of defamation?

Back 28

1) defamatory language (adversely affects reputation; assertions of fact and sometimes of opinion)
2) "of or concerning" the P
3) publication to a 3rd person (can be negligent; intent not nec.)
4) Damage to P's reputation (standard differs if slander vs. libel)
5) Falsity (plaintiff has to raise, but D has burden)
6) Fault - at least negligence

Front 29

What is LIBEL and what damage must P show?

Back 29

Libel = written or permanently recorded. General damages are presumed, generally want to show damages though for recovery.

Front 30

What is SLANDER and what damage must P show?

Back 30

Slander = spoken defamation. Plaintiff must prove "special damages" i.e. pecuniary loss UNLESS "slander per se":
1. adversely reflects on one's conduct in a business or profession;
2. has a "loathsome disease"
3. guilty of a "crime involving moral turpitude" or
4. woman is unchaste

Front 31

For MBE, is radio/TV defamation libel or slander?

Back 31

treated by most courts as libel.

Front 32

What are the defenses to defamation?

Back 32

1. Consent
2. Truth
3. Privileges (D must show). Either:
a. Absolute (comments btwn spouses, officers of the branches of government in the course of their duties — includes lawyers and witnesses)
b. Qualified (reports of proceedings, defense of one's actions/property/reputation, where there is a public interest in promoting candor)
BUT, statement has to be w/in scope of privilege and NO MALICE.

Front 33

What are the elements of invasion of privacy?

Back 33

Need CAUSATION and DAMAGES (emotional distress ok) and any of the following:
(a) appropriation -- unauthorized use of P's picture or name for D's commercial advantage
(b) intrusion upon P's affairs/seclusion -- must be something "private" and intrusion "objectionable to a reasonable person"
(c) publication of facts placing P in false light *NOT IN MA THOUGH -- must be "objectionable to a reasonable person" -- need malice if public interest issue
d. public disclosure of private facts -- must be private info & objectionable to a reasonable person. 1st amendmt malice req. attaches if public interest.

Front 34

What are the defenses to invasion of privacy?

Back 34

1. Consent
2. privileges if false light or disclosure

Front 35

What is the PFC for intentional misrepresentation (fraud/deceit)

Back 35

1. misrepresentation of a material fact
2. scienter (D knew or believed to be false or no basis)
3. intent to induce P to act in reliance
4. causation (actual reliance)
5. justifiable reliance (statement of fact, not just opinion)
6. damages

Front 36

What are defenses to intentional misrepresentation?

Back 36

NONE

Front 37

What is the PFC for negligent misrepresentation?

Back 37

** DOES NOT EXIST IN MA
1. misrepresentation by D in a business or professional capacity
2. breach of duty toward particular P
3. causation (actual reliance)
4. justifiable reliance
5. damages

Front 38

What is the PFC for malicious prosecution?

Back 38

1) institution of criminal proceedings against P
2) termination in P's favor
3) absence of probable cause for prior proceedings
4) improper purpose (not bringing to justice)
5) damages

*Prosecutors are immune

Front 39

What is the PFC for abuse of process?

Back 39

1) wrongful use of process for an ulterior motive
2) definite act or threat against P in order to accomplish an ulterior purpose

Front 40

What is the PFC for interference with business relations?

Back 40

1) existence of a valid contractual relationship OR valid business expectancy of P
2) D's knowledge of relationship or expectancy
3) intentional interference by D inducing breach or termination or relationship/expectancy
4) damages

*BUT, privileged when it is a proper attempt to obtain business for D or protect D's interests
**in Mass, interference must be IMPROPER in motive or means.

Front 41

What is the PFC for negligence?

Back 41

(1) Duty
(2) Breach
(3) Causation
i. Factual/but-for
ii. Proximate causation
(4) Damage

Front 42

How do you determine DUTY for negligence PFC?

Back 42

(1) was P foreseeable? A duty of care is owed only to foreseeable plaintiffs.
(2) what is the applicable standard of care? (normally the reasonably prudent person)

Front 43

What is the reasonable person standard/reasonably prudent person standard?

Back 43

- OBJECTIVE standard
- doesn't include personal attributes, but does include PHYSICAL attributes (blind, disabled, etc.)
- can be RATCHETED up to person WITH THAT KNOWLEDGE in the case of experts

Front 44

What are the exceptions to the RPP standard?

Back 44

1) kids
2) professionals
3) possessors of real estate
4) statute on point (negligence per se)
5) where duty to act affirmatively
6) NIED

Front 45

what is the standard of care for a child?

Back 45

- Children under 4 owe a zero duty of care
- From 4 through 18, a child owes the standard of care of a hypothetical child of similar age, experience and intelligence

EXCEPT if the child engages in an adult activity (such as operating a vehicle)

Front 46

what is the standard of care for a professional?

Back 46

-same duty of care of the average member of that same profession practicing in a similar locality (custom of the profession)

Front 47

What duty is owed to undiscovered trespassers?

Back 47

ZERO duty of care regardless of how they get hurt (they are unforeseeable victims)

IN MASS, just duty to refrain from reckless behavior

Front 48

What duty is owed to discovered or anticipated trespassers? (includes someone D knows or SHOULD know about)

Back 48

- RPP standard for ACTIVITIES
- AND,duty to warn/make safe
1) known
2) artificial
3) concealed
4) conditions posing risk of death or serious bodily harm

**In Mass, no distinction between discovered & undiscovered, just duty to refrain from RECKLESS behavior

Front 49

What duty is owed to LICENSEES?

Back 49

Licensee = social guests & those there for their own purposes
RPP for activities plus
duty to warn re: any:
1) known
2) dangerous conditions (natural or artificial and pose an "unreasonable risk of harm")
3) that licensee unlikely to discover
**no duty to inspect or repair
**in Mass, no distinction between licensees & invitees -ordinary standard of care to all lawful visitors

Front 50

What duty is owed to INVITEES?

Back 50

ie. there for landowner's business or on land open to public
RPP for activities plus
duty to MAKE SAFE re: any:
1) known
2) dangerous conditions (natural or artificial and pose an "unreasonable risk of harm")
3) that invitee unlikely to discover
4) and conduct REASONABLE INSPECTIONS for non-obvious dangers
**in Mass, no distinction between licensees & invitees -ordinary standard of care to all lawful visitors

Front 51

What is the attractive nuisance doctrine?

Back 51

w/ regard to artificial conditions, duty to warn or make safe for child trespassors if:
1) dangerous condition that owner is or should be aware of
2) owner knows/should know kids frequent the area
3) condition likely to cause injury (child's inability to appreciate risk)
4) expense of remedying is slight compared to magnitude of risk

Front 52

What duty is owed to users of recreational land?

Back 52

landowner who permits public to use land for recreation w/o fee = not liable for injuries unless landowner willfully or maliciously failed to guard against or warn re dangerous condition or activity.

Front 53

What is a lessor's (landlord's) duty of care re: premises for the lessee?

Back 53

Must warn of
1) existing defects of which he knows or has reason to know 2) which lessee not likely to discover on reasonable inspection
**If he covenants to repair, liable for unreasonably dangerous conditions.
**If he volunteers to repair, he's liable if negligent

Front 54

Who is liable if a tenant's guest is injured on the premises?

Back 54

potentially landlord (as owner) AND tenant (as occupier)

Front 55

What is the duty of a vendor of realty to a vendee?

Back 55

Must disclose:
1) concealed
2) unreasonably dangerous conditions
3) of which he knows/has reason to know, and
4) which vendee not likely to discover on reasonable inspection

Front 56

When does a STATUTE's duty replace the common law duty of care?

Back 56

i.e. negligence per se
1) statute provides for criminal penalty
2) clearly defines the standard of conduct
3) P within protected class
4) statute designed to prevent type of harm suffered by P
**but does NOT apply where compliance would cause more danger than violation or where compliance beyond D's control

Front 57

What is the effect of negligence per se on P's burden of proof?

Back 57

Majority rule - establishes a CONCLUSIVE presumption of duty and breach

In Mass, this is simply SOME evidence of negligence

Front 58

Where is there an affirmative duty of act?

Back 58

1) assumption of duty by acting (except where good samaritan statute)
2) peril due to D's conduct (can be innocent)
3) special relationship (-or/-ee, common carrier/innkeeper)
4) duty to control 3rd person where actual ability and authority to control & knows/should know of person's propensity

Front 59

What are the elements of NIED?

Back 59

1) duty to avoid causing emotional distress (always there)
2) breach - either (a) causing threat of physical impact --> emotional distress (ZOD) OR (b) directly causing severe emotional distress which is likely to result in physical symptoms (bystander ok if P & victim closely related, P present, P observed)
3) causation
4) damages - must cause physical symptoms from the distress

Front 60

What must you show to establish BREACH for a negligence case?

Back 60

D's conduct falls short of that required by standard of care...might be able to use Res Ipsa Loquitor to show

Front 61

What is Res Ipsa Loquitor?

Back 61

Where RIL established, P has made PFC for negligence (i.e. no directed verdict.
Requires:
1. Accident which occurred is normally associated with negligence (negate the non-negligent causes)
2. Accident which occurred is normally due to the negligence of someone in this defendant's position (show that the defendant had CONTROL over the instrumentality)

Front 62

How can causation-in-fact be shown if there are JOINT causes?

Back 62

Substantial factor test - where several causes bring about injury, but any one alone would have been sufficient, D's conduct is cause in fact if it was a substantial factor in causing the injury

Front 63

How can causation-in-fact be shown where there are alternative causes?

Back 63

Summers v. Tice standard - burden of proof shifts to Ds & each must show that his negligence was not the actual cause

Front 64

Where D directly caused P's injury, what is the extent of proximate cause?

Back 64

Liable for all foreseeable harmful results, regardless of unusual manner or timing & not liable for unforeseeable harmful results (not within the risk caused by D's negligence)
**but remember D takes P as she finds him, thus eggshell skull = D still liable

Front 65

What are foreseeable intervening forces (i.e. still within proximate cause)?

Back 65

1) med mal
2) negligence of rescuers
3) efforts to protect oneself/others/property
4) injuries in "reaction" to D's actions
5) subsequent disease due to weakened condition
6) subsequent accident substantially caused by original injury
7) foreseeable independent forces where D's negligence increased the risk (crimes/acts of 3rd persons, acts of God)

Front 66

Is D liable where a foreseeable result was caused by an unforeseeable intervening force?

Back 66

Usually yes; but not where it was a crime or intentional tort of a 3rd person

Front 67

Is D liable for unforeseeable result caused by a foreseeable intervening force?

Back 67

Rare, but where totally unforeseeable result, D generally not liable

Front 68

Is D liable for an unforeseeable result caused by an unforeseeable intervening force?

Back 68

No - this is called a "superseding" force and it breaks the causal connection

Front 69

Is D liable where there is an unforeseeable severity of harm to the P?

Back 69

Yes - this is the eggshell skull rule. D takes P as he finds her.

Front 70

What is the compensation based upon for personal injury?

Back 70

Compensation for all past, present & prospective damages, special and general. Foreseeability is irrelevant.

**BUT REMEMBER DUTY TO MITIGATE

Front 71

What is compensation based upon for property damages?

Back 71

reasonable cost of repair or, if property is nearly destroyed, FMV at time of the accident

Front 72

When can a P get punitive damages?

Back 72

When D's conduct is "wanton & willful", reckless or malicious

Front 73

Can a P recover interest from the date of damage?

Back 73

No

Front 74

Can a P recover attorney's fees in tort?

Back 74

generally no

Front 75

What are the MA Damage Caps for Med Mal?

Back 75

pain and suffering is capped at $500,000 unless
-death
-substantial permanent disfigurement
-loss of a bodily function

Front 76

What is the effect of contributory negligence?

Back 76

Traditional rule -- P who was contributorily negligent can't recover

Front 77

What is the effect of assumption of the risk?

Back 77

Traditional rule -- P who assumed the risk can't recover

Front 78

What is a pure comparative negligence regime?

Back 78

P recovers whatever percent from D based on D's fault (even if P was more to blame)

Front 79

What is a modified or partial comparative negligence regime?

Back 79

P recovers from D based on percent fault of D, but not if P more than 50% at fault

Front 80

Does Mass have contributory, pure comparative or partial comparative negligence?

Back 80

Partial comparative, but if P is 50% to blame exactly, can still recover

Front 81

What is the traditional showing required for an injunction?

Back 81

1. P has no adequate remedy "at law" (i.e. money won't work here)
2. tort invaded a "protectable interest"
3. injunction would be enforceable (negative injunctions are generally easier)
4. balance the hardships -- P's hardship without injunction will outweigh the difficulty of injunction on defendant

Front 82

What showing is required for a preliminary injunction?

Back 82

1. P has no adequate remedy "at law" (i.e. money won't work here)
2. tort invaded a "protectable interest"
3. injunction would be enforceable (negative injunctions are generally easier)
4. balance the hardships -- P's hardship without injunction will outweigh the difficulty of injunction on defendant
5. likelihood of success on the merits
6. irreparable injury without injunction (must tilt HEAVILY in P's favor)

Front 83

What defenses are unique to injunctions?

Back 83

1. Unclean hands - plaintiff guilty of misconduct of his own such that he should forfeit right to an injunction
2. Laches - prejudicial delay; independent of statute of limitations but similar. Idea is that you are seeking an injunction long after defendant has relied on failure to litigate.
3. First amendment - often used as a defense, particularly where prospective injunction for defamation

Front 84

When is contributory negligence a defense?

Back 84

In those jurisdictions that still use it, only a defense against negligence/negligence per se.

NOT a defense for intentional torts or wanton & willful misconduct.
NOT a defense where negligence per se and P was in protected class

Front 85

What is the last clear chance doctrine?

Back 85

Rebuttal to contributory negligence where D had last clear chance to avoid the accident

Front 86

When does assumption of the risk apply?

Back 86

In jurisdictions that still use it, it cannot be a defense to intentional torts, but it IS a defense to wanton & willful misconduct

Front 87

What is the general rule for liability for domesticated animals (e.g. dog bites)?

Back 87

Generally, no strict liability; have to establish negligence.
But, if knowledge of dog's vicious propensities, strictly liable.
IN MA, ALWAYS STRICTLY LIABLE unless victim was teasing or tormenting the animal

Front 88

What is the general rule for liability for wild animals kept as pets?

Back 88

strictly liable

Front 89

What effect do "abnormally dangerous activities" have on D's liability?

Back 89

aka "ultrahazardous" activities in MA.
D is strictly liable where
1. Activity creates a foreseeable risk of serious harm even when reasonable care is exercised
2. Activity NOT a matter of common usage in the community where D conducts it
STILL HAVE TO SHOW CAUSATION BY THE ABNORMALLY DANGEROUS ACTIVITY

Front 90

Does comparative fault apply to strict products liability?

Back 90

Yes

Front 91

In what ways can a P recover for a defective product?

Back 91

1) intentional conduct (D intended result or knew substantially certain)
2) negligence
3) strict product liability
4) breach of implied warranties (merchantability & fitness)
5) representation theories (misrep., express warranties)

Front 92

To establish strict liability, what must P show?

Back 92

1) Duty - D is a commercial supplier who has a strict duty to supply safe products
2) Breach - Defect (manufacturing or design/warning defect)
3) Causation - Actual & Proximate (defect existed when it left D's control)
4) damage (need property damage or physical injury)

Front 93

How can P show a manufacturing defect?

Back 93

by showing product failed to perform as safely as an ordinary consumer would expect (even anticipating reasonable misuse)

Front 94

How can P show a design defect?

Back 94

alternative method of constructing it/alternative design that meets three criteria:
i. Safer than marketed version
ii. economical (costs about the same to only a little bit more)
iii. Alternative design is practical (doesn't make it hard to use, doesn't impair)

Front 95

What kind of defect are inadequate warnings?

Back 95

design defect

Front 96

Who can sue in a products liability NEGLIGENCE action?

Back 96

users
consumers
bystanders
(do not need privity)

Front 97

What damages must be shown in a NEGLIGENCE products liability action?

Back 97

physical injury or property damage; need more than economic loss

Front 98

Who can sue for strict liability products liability?

Back 98

users, bystanders, consumers...no privity requirement

Front 99

What is the effect of contributory negligence on strict products liability?

Back 99

No bar to recovery

Front 100

What is the effect of disclaimers on strict products liability?

Back 100

No effect

Front 101

What is the implied warranty of merchantability?

Back 101

Goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used

Front 102

What is the implied warranty of fitness for a particular purpose?

Back 102

arises when seller knows or has reason to know the particular purpose for which the goods are required & that the buyer is relying on the seller's skill & judgment in selecting the goods

Front 103

Is Nuisance a tort?

Back 103

NO; it is a type of harm, but it falls into the usual tort liability categories (intentional, negligent & strict liability)

Front 104

What is a private nuisance?

Back 104

substantial, unreasonable interference with another private individual's use or enjoyment of property (must possess or have right to immediately possess the property)

Front 105

What is a public nuisance?

Back 105

an act that unreasonably interferes with the health, safety or property rights of the community

Front 106

What remedies are available for nuisance?

Back 106

-Damages
-if damages unavail or inadequate, injunctive relief (balance the hardships)
-self-abatement after notice to D and only private nuisance

Front 107

What are the defenses to nuisance?

Back 107

-legislative authority (zoning) is persuasive only
-conduct of others is causing it in whole or part
NOTE-contributory negligence only a defense where negligent
NOTE-"coming to the nuisance" only really a bar where P came to the nuisance to bring a harassing lawsuit

Front 108

When does respondeat superior apply?

Back 108

where tortious act occured within scope of the employment (note employer may ALSO be liable for their own negligence in hiring or supervising)
-minor detour = still w/in scope
-intentional torts = not w/in scope UNLESS:
1) force authorized in the employment (bouncer)
2) friction generated by the employment (repo man)
3)employee is furthering the business of the employer

Front 109

When does vicarious liability attach for an independent contractor?

Back 109

generally not liable for acts of an indep K EXCEPT:
1) indep K is engaged in inherently dangerous activities
2) duty is nondelegable for public policy reasons
**Note employer can still be liable for own negligence in hiring/supervising

Front 110

When are partners/joint venturers vicariously liable for the torts of another member?

Back 110

where the tort was committed in the "scope and course" of the affairs of the partnership or joint venture

Front 111

Is a car owner vicariously liable for another person's torts while driving his car?

Back 111

Generally NO, but watch out for where driver is acting as an agent
**also, there may be a negligent entrustment cause of action

Front 112

When is a parent vicariously liable for acts of their kids?

Back 112

Generally they aren't, though they may be liable for their own negligence.
But in Mass -- $5000 of vicarious liability if minor child over age 7 and intentional tort

Front 113

What does joint and several liability mean?

Back 113

-each D liable for FULL amount
-standard where two or more negligent acts caused an INDIVISIBLE injury, or where two or more Ds act IN CONCERT (regardless of whether divisible)

Front 114

When might a D be able to seek contribution?

Back 114

-Where he pays more than his fair share of damages under joint and several liability, may have a claim against other jointly liable parties
-the D must have been directly liable to the P
-can be either through comparative contribution or equal shares (dep. on jurisdiction)

Front 115

When might a D be able to seek indemnity?

Back 115

Available:
1) by contract
2) in vicarious liability situations
3) under strict products liability
4) in some jurisdictions, where there is an identifiable difference in degree of fault

Front 116

What torts survive death?

Back 116

Personal injury and property torts survive.

Intangible personal torts (defamation) die w/ the party.

Front 117

What is a loss of consortium claim?

Back 117

Entitles spouse of an injured party to recover for:
1. Loss of services (no one to cook the food, mow the lawn)
2. Loss of society (loss of companionship)
3. Loss of sexual intimacy

Front 118

What derivative claims might be available to the family of someone injured by a tort?

Back 118

-loss of consortium (spouse)
-loss of child's services
(note these are reduced per comparative liability)
(note that wrongful death might also be available--recovery for pecuniary injury)

Front 119

What intra-family tort immunities still exist?

Back 119

Most states don't have husband-wife immunity
Many don't have parent-child immunity
States that retain parent-child immunity don't apply where intentional tort or in auto accidents to extent of insurance

Front 120

What federal governmental immunity exists?

Back 120

-only applies to GOVERNMENTAL functions (not if govt acting like a private corp)
-under fed. tort claims act, US has waived immunity for torts, BUT NOT for DISCRETIONARY acts, assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, defamation, misrepresentation/deceit, and interference with contract.

Front 121

What state & local govt immunity exists

Back 121

generally to same extent as feds
but note public duty rule provides that duty is to general public not to a specific individual

Front 122

What charitable immunity exists?

Back 122

Most jurisdictions have eliminated it entirely

In MA, liable up to 20k if tort committed in the course of any activity carried on to directly accomplish the charitable purpose of the org

Front 123

What are the elements of defamation in MASS?

Back 123

1) D published a defamatory statement of & concerning P
2) statement was false in some material respect
3) D was negligent in publishing the false/defam statement
4) P suffered actual injury or harm as a result.

P must allege falsity, but D has burden of proving truth as an affirmative defense

Front 124

What is the test to see if something is defamatory in MA?

Back 124

whether the writing discredits the P in minds of any considerable and respectable class in the community

Front 125

In Mass, are radio & TV broadcasts libel or slander?

Back 125

radio = slander; TV = libel

Front 126

In Mass, can a P recover punitive damages for defamation?

Back 126

NO

Front 127

What differences does Mass have for invasion of privacy torts?

Back 127

-No false light tort
-"wrongful adoption" tort where adoption agency didn't disclose info that would allow parents to make a knowledgeable adoption decision

Front 128

Does Mass recognize a tort of negligent misrepresentation?

Back 128

No

Front 129

What is the Mass Anti-SLAPP statute?

Back 129

discourages SLAPP suits (strategic lawsuits against public participation)

Front 130

What are the elements of wrongful discharge?

Back 130

in MA only, at will employees may be discharged for any reason EXCEPT IF:
1) express contract based on personnel manual
2)violation of "clearly established public policy" (think constitutional or statutory law)
3) breach of the covenant of good faith & fair dealing (this is narrow)

Front 131

what is qui tam?

Back 131

IN MA, a whistle-blower may recover 10-25% of amount recovered from wrongdoer

Front 132

If an insurance company argues no duty to defend and loses, do they pay P's legal fees?

Back 132

In Mass, YES (homeowner's policy owner rule now extended to other kinds of liability policies)

Front 133

Can firefighters recover against someone who caused the fire, policemen against someone who caused them peril, etc.?

Back 133

Generally NO - this is the firefighters rule

BUT, in MA they CAN (statute expressly permits them to recover)

Front 134

What is the measure of negligence for a medical professional in MA?

Back 134

standard of care and skill of the average member of the medical profession practicing in that specialty at the time.
-COMMUNITY PRACTICE IS NOT CONTROLLING.
-but court will consider the resources available to the D

Front 135

What is the PFC for legal malpractice in MA?

Back 135

1) atty-client relationship existed
2) atty failed to exercise reasonable care in handling
3) P incurred a loss
4) atty's malpractice was proximate cause of the loss

Front 136

Are disclaimers for parking garages allowed?

Back 136

In MA, no.

Front 137

To whom does Mass Torts Claim Act apply?

Back 137

all state & municipal govts (but not semi-indep/quasi-publics & not to indep. Ks). Does apply to state colleges, housing authorities.

Front 138

What does the Mass. Torts Claims Act do (generally)?

Back 138

limits liability to 100k per PLAINTIFF. Covers negligence & wrongful acts of public employees acting within scope of employment (not intentional torts)

Front 139

What immunities exist under the Mass Torts Claims Act?

Back 139

No liability for:
1) execution of law (public employee exercising due care executing a statute/ordinance or municipal reg)
2) discretionary acts (i.e. policy-making)
3) intentional torts -- must be against employee directly
4) collection of tax/detention of goods
5) acts re permits/licenses
6) inspections
7) fire department (lack of or failure to control a fire)
8) police dept (lack of or failure to control crime)
9) release of prisoners, detainees
10) negligent act/omission to diminish harmful conseq. of something not cause by govt
11) judicial parties for their judicial actions

Front 140

What is the MA rule re bystander NIED?

Back 140

allows recovery for a bystander outside zone of danger if :
1) close relative, and
2) either witnesses the accident OR comes to scene right afterwards when injured person still there

Front 141

What is a landlord's duty against foreseeable criminal acts?

Back 141

in MA, duty of care to guard against foreseeable criminal acts of third parties. Higher duty for residential property.

Front 142

Are releases re: negligence okay?

Back 142

IN MA, yes. Just no releases for gross negligence.

Front 143

What is the MA Good Samaritan statute?

Back 143

--physicians, PAs, nurses, on duty certified medical techs, police officers and firefighters exempt from liability where:
1) emergency
2) administered in good faith
3) volunteered (no fee)
--CPR certified persons exempt only from ordinary negligence

Front 144

Is there a duty to warn?

Back 144

In MA, yes for psychologists and social workers (warn potential victims or take other reasonable precautions)

Front 145

Is assumption of risk a defense in MA

Back 145

abolished by statute, but still okay for strict liability actions

Front 146

what is the sophisticated user doctrine?

Back 146

in MA, affirmative defense in product liability; relieves manufacturer of liability for failing to warn of product's latent dangers

Front 147

How is strict products liability handled in MA?

Back 147

- MA does not recognize strict liability in tort, but has reached substantially the same results
- apply UCC warranties, but extend to any person whom manufacturer/lessor/seller might "reasonably have expected to use, consume, or be affected by the goods.

Front 148

When can someone be liable for serving alcohol in MA?

Back 148

"Tavernkeepers" -- illegal to serve alcohol to minors (req. negligence) or intoxicated persons (req. willful, wanton or reckless conduct)

Front 149

When can someone be liable for acts of an intoxicated person in MA?

Back 149

social host or employer may be liable for intoxicated driver's acts if person knew or should have known driver was drunk & permitted that person to drink

Front 150

What are the MA rules re contribution & indemnity

Back 150

traditional rules -- equal shares unless grounds for indemnity

Front 151

Who can bring a wrongful death action in MA? What can they recover?

Back 151

-can be brought only the executor or administrator of the deceased
-recovery is
1) FMV of the decedent plus funeral/burial expenses
2) punitive damages if malicious, willful, wanton or reckless
3) recovery for ACTUAL pain and conscious suffering experienced
4) in med mal wrongful death, can also recover for "loss of chance"

Front 152

Can a kid recover for loss of consortium of its parents?

Back 152

in MA, YES, even if child not yet born (recovers at birth)