Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
39 Cards in this Set
- Front
- Back
|
Battery
|
#1 INTENT
#2 OFFENSIVE CONTACT (UNPERMITTED by a person of ORDINARY sensitivity) #3 CONTACT w/ P’s PERSON |
|
|
Assault
|
#1 INTENT
#2 D must place P in APPREHENSION #3 Of IMMEDIATE battery |
|
|
False Imprisonment
|
#1 INTENT
#2 Act/threat/omission of RESTRAINT - P MUST KNOW of the confinement or BE INJURED by it #3 Confining P in a BOUNDED area (confined in 360 degrees w/ no reasonable means of escape) |
|
|
IIED
|
#1 INTENT
#2 Outrageous conduct --- Continuous, repetitive; common careers; P is vulnerable class (that D would know) #3 P must suffer SEVERE distress |
|
|
Trespass
|
#1 INTENT: D got to the challenged location by a CONSCIOUS & DELIBERATE act
#2 PHYSICAL INVASION by D #3 Invasion of P's land |
|
|
Trespass to chattels
|
#1 INTENTIONAL interference
#2 W/ lawful possession of the chattel of another #3 Wherein the interference is slight |
|
|
Conversion
|
#1 INTENTIONAL interference
#2 W/ lawful possession of the chattel of another #3 Wherein the interference is major, or whereby D deprives P of that chattel |
|
|
Defenses to intentional torts
|
- Consent (legal capacity req'd)
- Protective privileges (Defense of self, others, or property) --- Proper timing + reasonable belief --- Force used must be proportional --- Deadly force cannot be used to defend property (retreat req'd in NY) - Necessity (3 property torts) --- Public: Absolute defense --- Private: Must reimburse for harm done; right of sanctuary if emergency continues |
|
|
Defamation (general)
|
#1 Statement must be DEFAMATORY: ADVERSELY AFFECT P's rep
#2 Statement must SPECIFICALLY IDENTIFY P #3 Statement must be PUBLISHED (spouse doesn't count) #4 DAMAGES, maybe --- Libel: Damages presumed --- Slander: Damages presumed in per se cases (business/profession, crime involving moral turpitude, unchastity to a woman, loathsome disease, homo (NY)) |
|
|
Defamation (public concern)
|
#5 FALSITY
#6 FAULT --- Pubic figure: Malice --- Private figure: Negligence |
|
|
Defenses to defamation
|
- Consent
- Truth - Privileges --- Absolute privilege → based on who D’s status ----- Spouses ----- Officers of the gov’t acting w/in scope of their official duties --- Qualified privilege → based on circumstances/occasions/contexts of the speech ----- Grant privilege where there is public interest in encouraging candor ----- Two limitations that D must observe (or risk losing privilege) ------- Good faith → D needs reasonable belief that information is accurate ------- Privilege only covers matters relevant to policy behind the privileges |
|
|
Appropriation
|
D uses P’s name/image for commercial purposes
- Newsworthiness exception - Only privacy tort recognized in NY |
|
|
Intrusion
|
Invasion of P’s seclusion in a way that would be objectionable to an average person
- P has an expectation of privacy |
|
|
False light
|
Wide-spread dissemination of a major falsehood about P that would be objectionable to an average person
- Does not req any degree of fault - If matter is public interest, must prove malice |
|
|
Disclosure
|
Wide-spread dissemination of confidential information about P that would be objectionable to an average person
- Newsworthiness exception |
|
|
Defenses to privacy torts
|
- Consent
- Qualified privilege (false light & disclosure) |
|
|
Fraud
|
#1 AFFIRMATIVE FACTUAL MISREPRESENTATION of MATERIAL info in connection w/ a business transaction
#2 There must be SCIENTER (fault/intent) #3 Intent to INDUCE RELIANCE #4 Justifiable RELIANCE #5 Damage or other economic cost |
|
|
NY: Prima facie tort
|
INTENTIONAL infliction of pecuniary harm w/o legal/appropriate justification
#1 INTENT to do harm #2 PECUNIARY LOSS |
|
|
Inducing a BoK
|
#1 There has a to be a K (between P and 3dP, and must not be terminable at will)
#2 Awareness of K by D #3 Persuasion of D directed at 3dP to abandon the K #4 Breach of K Defense: special relationship between D and 3dP (usually of trust or confidence) |
|
|
Theft of trade secret
|
#1 P must possess a valid trade secret
--- Info must provide business advantage to the possessor and not be generally known --- Owner must take reasonable efforts to keep the info secret #2 D must take secret by IMPROPER MEANS --- Traitorous insider: Improper means turn on breaching a duty of keeping secrets --- Industrial spies: Improper means turn on another crime |
|
|
Negligence (general)
|
#1 Duty of care
#2 Breach of a duty of care #3 Causation #4 Harm |
|
|
Negligence (duty of care owed to whom)
|
- All foreseeable V
- Some unforeseeable V: --- Rescuers in the course of their rescue --- Fetus |
|
|
Negligence (amount of care owed, general)
|
REASONABLY PRUDENT PERSON acting under SIMILAR CIRCUMSTANCES
- Relevant superior knowledge is built in as 1-way ratchet - Reasonably prudent person shares PHYSICAL characteristics of D |
|
|
Negligence (amount of care owed, kids)
|
Hypo kid kid of similar age, experience, and intelligence acting under similar circumstances
- EXCEPTION adult activity |
|
|
Negligence (amount of care owed, pros)
|
Level of care of the AVERAGE MEMBER of that profession, practicing in a similar community
|
|
|
Negligence (amount of care owed, RE)
|
- Undiscovered trespassers: No duty of care (unforeseeable victim)
- Discovered/anticipated trespassers: Protect from known, man-made death traps - Licensee: Protect from ALL KNOWN TRAPS on the land - Invitee: Duty to reasonably inspect (but this is not a PERFECT inspection) EXCEPTIONS - Firefighters and police officers may NEVER recover for any risks that are an INHERENT ASPECTS of their jobs - Child trespassers – injury by artificial conditions is judged by REASONABLY PRUDENT PERSON - Satisfy duty: Fix/warn NY has abolished the categories – NOW IT’S PLAIN NEGLIGENCE: But circumstances include the TYPE/CIRCUMSTANCES of entry |
|
|
Negligence (amount of care owed, statutory)
|
Two part test: class of PERSON and class of RISK standard
#1 P must be a member that the statute seeks to protect #2 Accident is in the class of risks the statute seeks to prevent EXCEPTIONS (don’t adopt statute as standard of care) - When compliance would be MORE DANGEROUS than violation or would be IMPOSSIBLE |
|
|
Negligence (amount of care owed, stranger)
|
No duty to rescue a stranger, but D rescuer must act as a reasonably prudent person
- NY’s narrow Good Samaritan law: applies to nurses and doctors; they lose the protection if they are grossly negligent EXCEPTION - Pre-existing relationship between D and person in peril: Employer-employee; Friend-friend; Host-invitee; Family - If D put P in the position of peril |
|
|
Negligence (amount of care owed, NIED)
|
D is negligent under ANOTHER standard, then need a PLUS FACTOR:
- NEAR MISS → PLUS factors = P’s fear --- P was in a ZONE of DANGER produced by D’s negligence --- P suffered subsequent physical manifestations due to the distress - BYSTANDER→ PLUS factors = P’s sadness --- MS: P OBSERVED the injury to the other person --- #1 In real time --- #2 In close proximity (TV/Camera does not count) --- #3 Victim is a close family member (spouse/kid on MS) --- NY: P was SO CLOSE that she was in a ZONE of DANGER |
|
|
Negligence (breach of a duty)
|
Wrongful conduct + explain why it's a breach
- Res ipsa loquitor → the thing speaks for itself - #1 Accident which occurred is of a type NORMALLY ASSOCIATED with negligence - #2 Accident is normally due to the negligence of someone in D’s position |
|
|
Negligence (factual causation)
|
- Apply BUT-FOR test
- Multiple Ds --- MERGED causes, apply SUBSTANTIAL FACTOR test: whether each D's breach was theoretically capable of causing the problem BY ITSELF - UNASCERTAINABLE cause (not sure who did it) --- Shift burden to D to disprove liability |
|
|
Negligence (proximate causation)
|
Foreseeability: D is liable for all harmful results that are the normal incidents of, and w/in the increased risk caused by D’s acts
- Always foreseeable: intervening med malp; intervening clumsy samaritan; intervening reaction/protection; resulting disease |
|
|
Negligence (damages)
|
- NO NOMINAL DAMAGES
- Eggshell skull P - NY: Reduces tort recovery from other sources |
|
|
Comparative negligence
|
- PURE: by the #s, P ALWAYS recovers something even if P has a higher % of fault
- MODIFIED/PARTIAL: P’s fault of OVER 50% is an absolute bar to recovery |
|
|
SL (animals)
|
- Domesticated animal → bite #1 negligence, bites #2+ SL
- Wild animal → ALWAYS SL |
|
|
SL (abnormally dangerous activities)
|
#1 Activity creates FORESEEABLE risk of SERIOUS HARM even when reasonable care is exercised
#2 Activity is NOT one of common usage in the community wherein it is carried out |
|
|
SL (products)
|
#1 D was a merchant, someone who ROUTINELY deals w/ goods of this type, 4 issues
- #1 CASUAL sellers → NOT SL - #2 Service providers → NOT SL for products used during the service - #3 Commercial lessors ARE MERCHANTS even if they LEASE rather than SELL - #4 ALL MERCHANTS in the distribution chain may be SL #2 Must demonstrate product’s defect - #1 Manufacturing defect → when it departs from its intended design and is more dangerous than what consumers would expect --- Product is irregular (1-in-1M); good quality control doesn’t really help - #2 Design defect → product could have been built differently in a HYPOTHETICAL alternative design; P need to demonstrate 3 things --- #1 Alternative design must be SAFER --- #2 Alternative design must be ECONOMICALLY FEASIBLE --- #3 Alternative design must be PRACTICAL (cannot make it hard to use, defeat its primary purpose, or introduce new safety hazards) - (#3) Product information → i.e., instructions and warnings --- If product has RESIDUAL RISKS that cannot be physically designed out, if those risks are not OBVIOUS to users, it is DEFECTIVE to sell the product w/o adequate warning and instructions #3 Products MUST NOT be altered since it left ∆’s hands - PRESUMPTION that product has NOT been altered if it has moved in ORDINARY CHANNELS #4 P must be making a foreseeable use of the product at the time P gets hurt |
|
|
Nuisance
|
An UNREASONABLE INTERFERENCE with one’s ability to ENJOY his own land
- Super-sensitive Ps don't get benefit |
|
|
Worker’s comp
|
EXCLUSIVE remedy for covered employees injured at work
- KEY ISSUE: Employer through the insurance is SL - BUT recovery is limited: no pain and suffering, and no punitive damages Who is covered: - EMPLOYEE (covered) v. INDEPENDENT CONTRACTOR (not) What injuries are covered: every injury on the job, EXCEPT - Injury due solely to employee’s intoxication - Intentionally (self-inflicted) injuries, or intentionally inflicted injuries on one employee by another - Injuries occurring in an off duty athletic activity |
