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22 Cards in this Set
- Front
- Back
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False Imprisonment
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Elements:
1. Confinement 2. Intent 3. Causation of Injuries Citizen's Arrest for a FELONY is a defense to False Imprisonment MBE:Private citizen may make arrest for misdemeanor if it was committed in his presence and a breach of peace occurred In Massachusetts, there is no right to make citizen's arrest for misdemeanor (this is false imprisonment) --Exceptions: 1. Merchants with reasonable belief that misdemeanor occurred 2. Innkeepers 3. Stolen public records |
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Intentional Infliction of Emotional Distress
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Elements:
1. Extreme & Outrageous 2. Intent 3. Cause 4. Damages In Massachusetts, if the infliction causes a person to die then the cause of action will survive the plaintiff's death (but no punitive damages) |
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Defenses to an Intentional Tort
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Self-Defense:
Massachusetts requires one to retreat if reasonably safe to do so --Exception: No retreat if protecting your home Defense of Others: As long as the person you're defending had a right to use self-defense |
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Defamation
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1. Writing (can be oral)
2. Which Discredits the Plaintiff; and 3. Discredits the Plaintiff in the eyes of ANY respectable or credible class in the community Element #3 is important because it means that a person may be "libel-proof" if his reputation has already been so damaged that no matter what is said about him, his reputation may never be harmed in the eyes of any respectable or credible class in the community |
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Defamation: Libel
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Libel Per Se: Libel on its face
Libel Per Quod: Needs extraneous evidence No Massachusetts distinctions for Libel Don't need to prove special damages Truth is NOT an absolute defense --If the plaintiff can prove malice, there will be STILL liability for libel. |
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Defamation: Slander
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Slander Per Se (no need to prove special damages)
--If it's "per quod" (needs extraneous evidence) then it cannot be slander per se --Crime allegation (does not need to include moral turpitude, like MBE) --Loathsome Disease --Words injuring profession or business No Punitive Damages Truth is a defense |
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Invasion of Privacy
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Invasion is narrowly construed so it must be a SUBSTANTIAL invasion
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Invasion of Privacy: Use of Name or Likeness for Commercial Purposes
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By statute, INCIDENTAL use is NOT actionable
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Misrepresentation in Sales
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If sale is for personal property: If the misrepresentation is INTENTIONAL the buyer can receive treble damages.
Misrepresentation in Real Property: modified caveat emptor --no duty to disclose, but if asked, must tell the truth |
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Malicious Prosecution
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Elements:
1. Institution of Criminal Proceedings 2. Which the plaintiff (defendant in criminal case) wins (acquitted or dismissed) 3. Without probable cause 4. For an Improper Purpose 5. Damages 6. Malice (not needed on MBE) |
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Wrongful Discharge
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Discharge of "at-will" employee will be okay if it is for "good cause" or for no reason, as long as there is no BAD CAUSE, such as:
1. Constitutional Reasons (race or sex) 2. Statutory Reasons (Workers compensation claim, jury service, whistle-blowing) 3. Public Policy Shareholders in closely held corporations have high level of fiduciary duty to other shareholders (if discharged, it is a breach of their fiduciary duty) Employee Manuals: If one exists and says that certain procedures must be followed during termination, that manual becomes part of the contract and if discharge occurs without following procedure, can sue for breach of employment contract |
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Wrongful Birth/Life/Pregnancy and In Vitro Children
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"Wrongful Life" (brought by child) is not a cause of action
"Wrongful Birth" or "Wrongful Pregnancy" is a cause of action A wrongful death suit cannot be brought for a child that dies in vitro due to negligence unless there was viability |
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Standard of Care: Professionals
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Average qualified practitioner throughout the profession
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Standard of Care: Attractive Nuisance
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Defendant can claim comparative negligence of defendant.
For ski areas: very hazardous activity--can sue bad skiers but not ski area. If it is icy, cannot sue the ski area Ski area will only be negligent if they do something like place a green circle where a black diamond should be. --1 year statute of limitations |
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Standard of Care: Landlords
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Landlords owe a very high standard of care to tenants
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Standard of Care: Good Samaritans
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Dr/Nurse/Vet/EMT/Cop/Fireman acting as good samaritans are exempted from ALL civil liability.
If CPR certified but not quasi-professional: exempt for ordinary negligence but not gross negligence If not CPR certified: liable for ordinary negligence |
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Strict Liability: Dangerous Animals
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No "1-bite" rule in Massachusetts: Dogs are recognized as inherently dangerous so there is strict liability
But "teasing" or "trespass" are defenses to strict liability. --Burden is on PLAINTIFF to show there was no teasing or trespass Kids under 7 are presumed NOT to tease or trespass so burden is on DEFENDANT to show that plaintiff did tease or trespass |
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Strict Liability: Lead Paint
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Strict Liability for kids under 6
Parents may be liable for contributory negligence from letting kids ingest the lead paint. |
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Strict Liability: Products & Services
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There is NO Strict Liability in TORT for products in Massachusetts
There IS Strict Liability in Contracts for products CANNOT DISCLAIM an IMPLIED warranty for sale of goods or services Vendors are presumed to know all defects So don't bring action in Tort, brig it in Contract, instead. --No privity requirement--can sue because they placed product in stream of commerce |
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Vicarious Liability
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Respondeat Superior: If employer has employee who is negligent while acting within scope of employment, employer is responsible for the liability
Employee or Independent Contractor? --Determined by right to control --Employer liable for torts of independent contractor ONLY if he failed to use care in selecting independent contractor Party committing the negligence may sue the provider of the alcohol Bar Owners: responsible for ordinary negligence Social Hosts: Must show RECKLESSNESS --If they control the supply of alcohol then liable --If they don't control the supply then not liable |
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Wrongful Death
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Spouse & Kids may sue
Spouse gets 50% of recovery Kids get 50%, per stirpes Distinct from Pain & Suffering --Wrongful death is a cause of action held by the family members --P&S would be part of personal injury survival action (so Estate can sue for it and creditor of decedent can recover it) |
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Massachusetts Tort Claims Act
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Waives Sovereign Immunity
May Sue the Commonwealth for torts, but: 1. Recovery limited to $100,000 2. Cannot sue the individual wrongdoer, just the governmental entity --If it is an intentional tort then cannot sue the government entity and can only sue wrongdoer 3. Discretionary Acts exempted --Cannot sue town for failing to provide fire department or for negligently dousing a fire --But can sue town if fire truck runs over you on the way to the fire |
