Mbe Torts (Pmbr)

Front 1

elements to defamation IF NOT A MATTER OF PUBLIC CONCERN (4)

Back 1

1. defamatory language
2. of or concerning P
3. communicated 2 third party
4. resulting in damage to reputation

Front 2

elements to defamation IF A MATTER OF PUBLIC CONCERN (6)

Back 2

1. defamatory language
2. of or concerning P
3. communicated 2 third party
4. resulting in damage to reputation
5. falsity of defamatory stmt
6. fault on D's part

Front 3

defenses to defamation (4)

Back 3

1. consent
2. truth
3. absolute privilege
4. qualified privilege

Front 4

invasion of privacy claims (4)

Back 4

1. appropriation
2. false light
3. public disclosure of private facts
4. intrusion on one's seclusion or solitude

Front 5

collateral source rule

Back 5

the contributions from D's are set off upon judgment in tort claim

Front 6

elements to misrepresentation/fraud/deceit (6)

Back 6

1. false stmt from D
2. knowledge
3. intent to compel reliance from P
4. causation
5. justifiable reliance
6. damages

Front 7

misrepresentation: general rule for disclosure and 2 exceptions

Back 7

generally, no duty to disclose, unless

1. fiduciary relationship
2. D has partially disclosed truth

Front 8

2 elements for public nuisance

Back 8

1. an unreasonable interference w/ right common 2 general public
2. where conduct involves a significant interference w/ public health, safety, or peace

Front 9

how to recover for public nuisance

Back 9

P must suffer harm distinct from general public:
1. PI
2. harm 2 health
3. harm to chattels
substantial interference w/ enjoyment of land

Front 10

invasion of privacy claims subject 2 reasonableness std.

Back 10

1. false light
2. public disclosure of private facts
3. intrusion on one's seclusion or solitude

Front 11

what is appropriation and what are/are not defenses?

Back 11

1. making unauthorized use of p's name/likeness for D's own commercial adv

2. mistake and truth is no defense

3. consent is only defense

Front 12

What is public disclosure of private facts and what are/are not defenses?

Back 12

1. one who gives publicity to a matter re the private life of an individual when the matter would be highly offensive to a reasonable person and has not legitimate public concern

2. truth is no defense

3. consent or newsworthy publication is a defense

Front 13

what are absolute privileges (3)?

Back 13

1. judicial proceedings
2. executive proceedings
3. legislative proceedings

Front 14

what is qualified privilege?

Back 14

defamation for the public interest or interest of others so long as you reasonably believe the info the be true and state w/o malice

Front 15

slander v. libel

Back 15

slander:
1. oral defamation
2. must prove special damages

libel
1. written/radio/TV defamation
2. no special damages needed

Front 16

examples of slander per se (4) and how to gain damages?

Back 16

1. P is a whore
2. loathsome disease
3. impute improper conduct in one's trade, conduct, or profession
4. falsely accuse one of a crime/moral turpitude

DAMAGES ARE PRESUMED

Front 17

what is/is not defamatory language (2/2)

Back 17

IS
1. lang. tending to adversely affect one's reputation
2. induced stmt via innuendo

IS NOT:
1. opinion
2. dead guys!

Front 18

how particular must defamatory stmt ID to P?

Back 18

so long as reasonable listener/viewer would understand that the stmt referred to P

Front 19

what is publication and who are liable for publication stmts?

Back 19

1. defamatory stmt made to somebody besides P

primary publishers and all repeaters of defamatory stmts are liable!

Front 20

night terrors

Back 20

bad dreams more often in childhood
****dont remember them when waking up

Front 21

what is private nuisance?

Back 21

disturbance that creates substantial and unreasonable interference with one's use and enjoyment of the property

Front 22

What is the test for private nuisance

Back 22

it must be offensive, inconvenient, or annoying to the average member of the community

Front 23

why can a hypersensitive P never recover for nuisance?

Back 23

they are not a reasonable person!

Front 24

SL - defective products: elements (3)

Back 24

1. a supplier of products
2. engaged in the business of selling products
3. who places a defective product, unreasonably dangerous to the consumer, in the stream of commerce

Front 25

SL - Animals: test for wild animals

Back 25

owner of a wild animal is SL for the resulting harm resulting from the wild or dangerous nature of the animal

Front 26

SL - Animals: test for domesticated animals

Back 26

owner is liable if he had knowledge that animal is vicious

Front 27

wrongful death actions:
1. who may recover
2. what may they get?

Back 27

1. allows heirs to recover on behalf of decedent
2. pecuniary losses but no pain/suffering or privacy/defamation

Front 28

Survival actions
1. who may recover
2. what may they get?
3. what may they not get?

Back 28

1. allows estate to recover
2.
-pain/suffering
-lost wages
-medical expenses

no privacy/defamation

Front 29

respondeat superior: what is employer liable/not liable for (1/1)

Back 29

Liable: negligence of employee
Not liable: intentional torts of employees

Front 30

joint venture liability: elements (4)

Back 30

1. express/implied K
2. community of interest
3. common purpose
4. equal right of control

Front 31

joint ventures: who is liable

Back 31

each participant is vicariously liable for the torts of the others committed w/in the scope of the venture

Front 32

independent contractors: when is employer ever liable

Back 32

1. negligent hiring/supervision
2. nondelegable duties
3. contractor is doing inherently dangerous work (dams, high-tension wires, high rise bldg.)

Front 33

negligent entrustment test;

Back 33

it appears that owner know/should know of negligent propensities of driver to whom vehicle is entrusted (drunk driver)

Front 34

family purpose doctrine: test

Back 34

owner of an automobile is vicariously liable for acts of agents/family members when used for family purposes

Front 35

assault elements (3)

Back 35

1.overt act that creates reasonable apprehension of immediate harm or offensive conduct to P or anything connected to her
2. intent
3. causation

Front 36

why are damages not required for assault?

Back 36

reasonable apprehension is the damage to P

Front 37

standard for apprehension in assault

Back 37

apprehension must be reasonable

Front 38

battery elements: (3)

Back 38

1. act that in/directly causes a harmful or offensive contact with another person
2. intent
3. in/direct causation

Front 39

does P need to know that he was touched to be battered?

Back 39

no

Front 40

false imprisonment elements (3)

Back 40

1. act or omission that in/directly caused the confinement or restrint of another within fixed boundaries by D
2. intent or knowledge on P and D's part that such confinement would result
3. causation

Front 41

IIED: elements (4)

Back 41

1. outrageous or extreme conduct
2. intent to cause severe emotional distress
3. causation
4. damages

Front 42

wrongful/malicious prosecution: elements (4)

Back 42

1. private person initiates or procures the institution of criminal proceedings against another;
2. without probable cause
3. primarily for a purpose other than to bring an offender to justice
4. suspected D turns out no to be guilty of the offense charged

Front 43

trespass to land: elements (3)

Back 43

1. D, w/o consent/privilege, physically enters the real property of another or causes a 3rd pty to do so
2. intent, regardless of mistake
3. causation

Front 44

trespass to chattels: elements (3)

Back 44

1. D interferes w/ P's possessory right in chattel or committing an act w/ said chattel that was substantially different from the act to which P consented
2. intent
3. causation

Front 45

conversion: elements (4)

Back 45

1. D's act interferes/disposes P of chattel such that the full value of the chattel is owed to P by D
2. intent to use w/o permission
3. causation
4. damages

Front 46

defenses to claims of physical harm (8)

Back 46

1. self-defense
2. reasonable discipline
3. defense of others
4. defense of property
5. privilege of trust
6. necessity
7. consent
8. privilege of arrest

Front 47

relationships conveying affirmative duty of care due to economic/power position (5)

Back 47

1. employer/employee
2. common carrier and inkeeper/customer
3. school/pupil
4. parent/child
5. jailer/prisoner

Front 48

duty of care: known/anticipated trespasser

Back 48

warn of known, dangerous conditions

Front 49

duty of care: licensee

Back 49

warn of known, dangerous conditions

Front 50

duty of care: invitee

Back 50

make a reasonable inspection and make safe

Front 51

duty of care: public employees

Back 51

invitees: inspect and make safe

Front 52

duty of care: unknown trespasser

Back 52

none

Front 53

only time landowner owes duty of care for artificial conditions on the land?

Back 53

attractive nuisance doctrine

Front 54

elements for attractive nuisance doctrine? (5)

Back 54

1. artificial, dangerous condition
2. know that children are likely to trespass
3. know/reason to know that condition poses risk
4. child fails to appreciate danger of risk
5. utility of maintaining dangerous condition is slight compared to risk

Front 55

duty of care: trees (residential v. rural)

Back 55

residential: reasonable care owed
rural: no duty of care

Front 56

duty of care: emergencies

Back 56

1. must act as reasonable person under emergency

Front 57

when is victim liable for injury to rescuer?

Back 57

1. D negligently puts himself in peril; and
2. rescuer not reckless

Front 58

duty of care to car passengers who create economic benefit?

Back 58

invitees: inspect and make safe

Front 59

duty of care to passengers who do not create economic benefit?

Back 59

licensee

Front 60

limits to defense of others

Back 60

you may be mistaken in your belief so long as it is reasonable!

Front 61

remedies for conversion (2)

Back 61

1. FMV of the item (not the amt. you paid for it)

2. replevin

Front 62

examples of conversion (6)

Back 62

1. theft/embezzlement
2. wrong transfer/delivery
3. wrongful detention
4. using w/o permission
5. refusal to return on demand
6. intentionally destroying/altering

Front 63

what is chattel?

Back 63

chattel =personal (not real) property

Front 64

Torts where damages need not be shown to recover (5)

Back 64

1. Assault
2. Battery
3. False Imprisonment
4. Wrongful prosecution
5. Trespass

Front 65

Torts requiring damages to recover (6)

Back 65

1. Defamation
2. Misrepresentation
3. Nuisance
4. Negligence
5. IIED
6. Conversion

Front 66

reasonable person: physical characteristics (2)

Back 66

1. court will consider physical handicaps
2. person is expected to know them

Front 67

reasonable person: mental characteristics (3)

Back 67

1. mental handicaps/individual shortcomings are not considered
2. insanity is not a defense
3. D is deemed to have knowledge of things known by the avg. member of the community

Front 68

reasonable person: professional

Back 68

required to possess and exercise the knowledge and skill of a member of the profession in good standing, in the community or similar locality

Front 69

duty of care: lessor of land (duties and what is he liable/not liable for?)

Back 69

not liable: leased property after lessee takes possession

duties/liabilities:
1. must warn of latent dangerous condition at commencement of lease
2. liable for common passageways
3. must know of dangerous condition to be liable for it

Front 70

res ipsa: elements (4)

Back 70

1. no direct evidence of D's conduct
2. accident rarely occurs w/o negligence
3. unless manufacturer, D must have had exclusive control at the relevant time
4. no contrib by P

Front 71

impact of successful res ipsa showing? (2)

Back 71

1. creates inference of negligence
2. does not change the burden of proof

Front 72

negligence per se: elements (2)

Back 72

1. P was member of class sought to be protected by statute
2. harm P suffered was kind statute was designed to protect

Front 73

defenses for negligence per se (3)

Back 73

1. following the statute would have aggravated harm (negates factual injury)
2. emergency
3. acute physical injury

Front 74

causation: basic elements (2)

Back 74

1. factual (but-for) cause
2. legal (proximate) cause

Front 75

variations of factual causation (3):

Back 75

1. but-for
2. direct
3. substantial factor

Front 76

principle of presumption of causation

Back 76

1. if you have proximate (legal) causation; presume factual causation

2. if you have factual causation, DO NOT presume proximate cause

Front 77

intervening causes: what are they and the general rule

Back 77

what are they: a secondary act which produces harm after the original tortfeasor has already committed his omission/negligent act

general rule: original tortfeasor is liable for the results of any FORESEEABLE intervening cause

Front 78

examples of FORESEEABLE intervening causes/forces (4)

Back 78

1. negligent rescue
2. subsequent medical malpractice
3. subsequent disease
4. subsequent accident, if original accident was substantial factor in causing second

Front 79

examples of UNFORESEEABLE intervening causes (3)

Back 79

1. Acts of God
2. criminal acts of third persons
3. INTENTIONAL torts of third persons

Front 80

When you have multiple D's, when is apportionment/joint & several liability appropriate?

Back 80

apportionment: each D causes a distinct, separate injury

joint and several: all D's cause indivisible injury

Front 81

When are nominal damages available in negligence?

Back 81

never!

Front 82

when are punitive damages available in negligence?

Back 82

only for D's wanton/willful conduct

Front 83

What is Eggshell P Rule?

Back 83

D is liable for the full consequences of P's injury, even though, due to P's susceptibility for harm, those consequences were more severe than a normal person would suffer

Front 84

when are attorney's fees allowed as damages?

Back 84

never

Front 85

examples of collateral source payments NOT counted against P's recovery (3)

Back 85

1. insurance policies
2. employment benefits
3. social legislation benefits (VA benefits)

Front 86

when is contrib not a valid defense (3)

Back 86

1. intentional torts
2. willful misconduct
3. strict liability

Front 87

distinguish modified/pure comparative negligence

Back 87

modified: P's negligence < 50% = P recovers

pure: P's recovers regardless of contrib

Front 88

what damages are recoverable in negligence (4)?

Back 88

1. general/special damages
2. past/future pain and suffering
3. medical expenses
4. lost wages

Front 89

who may block SL of a defendant?

Back 89

nobody, even if D tells P to get the defective product fixed on D's dime

Front 90

SL: liability of non-suppliers

Back 90

they are never liable (i.e. doctor can't be SL for using defective needle he didn't produce/sell)

Front 91

when is contrib. a defense in strict liability?

Back 91

assumption of the risk: only when P knows of risk that justifies imposition of strict liability and voluntarily undertakes it anyway

Front 92

what are the three primary defenses in strict liability? (3)

Back 92

1. assumption of the risk for primary users aware of the risk
2. misuse
3. product was substantially changed after leaving D's hands