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151 Cards in this Set
- Front
- Back
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Battery |
The offensive, harmful or offensive, touching of another. |
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Assault |
The intentional threatening of another with battery and the creating of reasonable apprehension of immediate bodily harm in the victim. |
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False Imprisonment |
The intentional confinement of the plaintiff by the defendant. |
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Intentional Infliction of Mental Distress |
The intentional causing of severe emotional or mental distress in another through extreme and outrageous conduct. |
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Trespass to Land |
An intentional entry upon real property in the possession of another. |
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Trespass to Chattel |
The intentional interference with a person’s use or possession of a chattel. |
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Conversion |
An intentional assumption of dominion and control over the chattel of another, resulting in a substantial interference with the plaintiff's possessory rights. |
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Intent Requirement for Intentional Torts |
The defendant had a conscious desire that the result would occur, knew that the result would occur, or knew that the result was substantially certain to occur. |
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Substantial Certainty Doctrine |
If the defendant does an act with the knowledge that it is substantially certain to produce a particular result, the defendant is deemed to have intended the result and is liable for his act. |
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Transferred Intent Doctrine |
When a defendant, while in the process of committing a tort against one person, unintentionally harms a third person or commits a different tort. In such a case, the defendant’s wrongful intent is transferred to include the unintended victim or tortious act. |
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Trespass Ab Initio |
An entry upon the real property in possession of another under a conferred legal right, and the subsequent abusing of that conferred legal right through the commission of an assault, battery, false imprisonment, or trespass. |
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Defense of Consent |
A defendant who acted in accordance with the plaintiff’s informed and voluntary assent, whether express or implied, is not liable for the resulting harm so long as the plaintiff had legal capacity. |
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Defense of Self-Defense |
A person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect himself.
If the attack is with so-called "deadly force" the majority rule is that the one attacked may defend with "deadly force" if deemed reasonable under the circumstances.
The minority rule requires that the one attacked retreat if there is a safe means of doing so, unless the victim of the attack is in his "castle"(i.e., home). |
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Defense of Defense of Others |
A person who reasonably believes another to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect the personal safety of the other person. |
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Step-In-Shoes Jurisdiction (Defense of Others) |
In some jurisdictions a person is not allowed to use the defense of “defense of others” unless the person being defended was not the aggressor and had the right to use self-defense. |
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Reasonable Appearances Jurisdictions (Defense of Others) |
In other jurisdictions, a person defending another in good faith and in ignorance of the fact that the person being defended is the aggressor and not entitled to use self-defense is nevertheless justified when acting upon reasonable appearances.
Sometimes it is further required that the person being defended is one whom the defender is authorized by statute to protect. |
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Defense of Defense of Property |
A person may use reasonable force that is not likely to cause death or serious bodily harm to protect his or her possession of real or personal property against an apparent trespasser. |
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Defense of Prevention of Crime |
A person, whether a police officer or a private person, may use reasonable force to prevent the commission of a crime which is apparently being attempted in his or her presence. |
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Defense of Legal Authority |
A person may commit an otherwise tortious act if it is done under legal process or is otherwise authorized by law.
It is a defense that is usually used by police officers or private persons who have made an arrest either with or without a warrant and who are now facing charges of false imprisonment in relation to their having made the arrest. |
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Defense of Necessity |
A person may commit an otherwise tortious act if that person is acting in an emergency situation to protect himself or others from a threatened injury to person or property. The person claiming the defense of necessity may act on appearances. A reasonable mistake is permitted. |
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Defense of Recovery of Property |
A person may commit an act which would otherwise be tortious if he or she is acting in fresh pursuit and with a reasonable degree of force to regain possession of his or her property.
There are three separate aspects to this particular defense: re-entry upon land, recapture of chattel, and the Shopkeeper's Rule. |
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Re-entry Upon Land Aspect |
A person may use reasonable force to re-enter real property only if the taking of the property was tortious or wrongful and the re-entering party is entitled to immediate possession. Ordinarily, a demand must be made for the occupier to vacate unless such a demand would be a total exercise in futility. Only force not likely to cause death or serious bodily harm may be used. |
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Recapture of Chattel Aspect |
A person may use reasonable force to defend against his or her chattel being taken only if the taking of the chattel was wrongful or tortious, the recapturing person is in fresh pursuit, and the degree of force is not likely to cause death or serious bodily harm. |
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Shopkeeper's Rule |
A business person has a limited privilege in some jurisdictions to detain a suspected thief, e.g., shoplifter or embezzling employee, to investigate the shopkeeper's claim to the goods, even though it may be determined that no wrongful taking has been committed. |
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Fresh Pursuit |
The requirement that a person recapturing a chattel or a shopkeeper detaining a suspected thief must do so without unreasonable delay after discovering the loss. |
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Reasonableness |
A concept that permeates all of the defenses to intentional torts. It is the standard by which the amount of force used or the time and manner of a re-entry, recapture, or detention is judged. |
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Negligence |
Liability requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and proximate cause of damages suffered by the plaintiff. |
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General Duty |
Holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm. |
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Cardozo Rule on Duty |
Under Palsgraf v. Long Island Railroad Co., majority opinion held that a defendant owes a duty only to those who could foreseeably be endangered by the defendant’s negligent act. Therefore, according to the rule, there is no duty owed to a plaintiff who is in a position of apparent safety when the defendant commits a negligent act. This is the so-called “orbit of danger” test. |
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Andrews Rule on Duty |
In the Palsgraf case, dissenting opinion which has been applied as the majority opinion in other cases. Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action. Thus, Cardozo looked at the issue from a perspective of identifying whether a duty is owed, while Andrews considered the issue as one of proximate causation. |
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Special Duty |
In addition to the general duty which everyone owes, these duties may be imposed due to a special relationship or circumstance. |
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Negligence Per Se |
Under the doctrine, the elements of duty and breach are proved when a defendant violates a safety statute which was intended to protect the class of people to which the plaintiff belongs from the kind of injury the defendant caused. In California, a presumption of negligence arises. |
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Duty Owed to a Guest Passenger |
A driver of a motor vehicle, in the absence of a statute otherwise, owes to persons riding in the vehicle a duty of driving with due care.
However, a number of jurisdictions have statutes that provide that a guest passenger in an automobile cannot recover from the owner or operator of the automobile unless the owner or operator is guilty of willful misconduct, recklessness, or intoxication. |
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Duty Owed to a Person Injured by a Drunk Driver |
A person who serves alcoholic beverages to one who is intoxicated is not, in the absence of a statute stating otherwise, liable for the damages done by the intoxicated person.
However, in those jurisdictions which have statutes traditionally referred to as dram shop acts, an owner, a bartender or other persons serving alcoholic beverages to a person who is intoxicated can be held liable for the foreseeable damages caused by the intoxicated person. |
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Owner Liability Statutes |
Certain statutes impose liability upon owners of vehicles for the tortious acts committed by persons to whom the owner intentionally furnishes the vehicle. |
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Family Purpose Doctrine |
A parent who furnishes a vehicle to the members of his or her family for customary convenience, assumes liability for the tortious acts committed by those persons when the car is being driven for a family purpose. |
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Omission to Act |
“nonfeasance” does not give rise to tort liability unless there is a special relationship or special circumstance which creates an affirmative duty requiring the defendant to act to protect the plaintiff. 1. No duty is owed to act to prevent injury to another 2. exceptions: a. parent/child b. husband/wife c. co-venturers d. innkeeper/guest e. commoncarrier/passenger f. person who creates danger/person so endangered |
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Duty Owed by a Good Samaritan |
1. person rendering services owes a duty of care to recipient of services 2. abandonment is allowed unless it results in prejudice to the other party’s position Some jurisdictions have enacted statutes designed to encourage physicians to render emergency aid, by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability can be imposed upon them only for reckless or wanton misconduct. |
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Duty Owed to a Rescuer |
A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer. |
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Negligent Supervision |
1. person who is obligated to supervise a child owes a duty to those injured by child. 2. person who is obligated to supervise a child owes a duty to the child. |
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Duty Owed to an Invitee |
A land occupier owes a duty of ordinary care to invitees, which includes reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions which a reasonable inspection would reveal. |
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Invitee |
A person who has an express or implied invitation to enter property for the purpose for which the property is maintained. |
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Business Invitee |
A person who has express or implied permission to enter business property to do business with the land occupier. |
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Public Invitee |
Enters property in the possession of another for the purpose for which the property is held open to the public. It is not required that a business purpose be involved. Public employees acting within the scope of their official duties are included in the category of public invitees. |
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Duty Owed to a Licensee |
A landowner owes a duty of ordinary care to licensees, which includes either 1) warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee, or 2) repairing dangerous conditions to make the property safe. |
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Licensee |
A person who enters property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business. |
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Duty Owed to a Trespasser |
The land occupier generally owes no duty of care to the trespasser unless the trespasser is 1. a constant trespasser upon a limited area or 2. a child to whom the Attractive Nuisance Doctrine applies. |
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Trespasser |
Someone who enters the real property of another without express or implied consent. |
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Duty Owed to a Constant Trespasser Upon a Limited Area |
The land occupier owes a duty to warn (who?) of known dangerous artificial conditions unless such conditions are obvious. |
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Constant Trespasser Upon a Limited Area |
A trespasser whose presence is known, or should be known, to land occupier because of the trespasser's repeated acts of trespassing. |
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Duty Owed to a Child Trespasser |
The land occupier owes no duty to a ? trespasser, unless 1. he is a constant trespasser upon a limited area or 2. unless the case is one in which the Attractive Nuisance Doctrine applies. |
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Attractive Nuisance Doctrine |
The land occupier owes a duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present: 1) foreseeability of trespass, 2) foreseeability of serious harm, 3) the child is unaware of the danger, and 4) the benefit to the owner of maintaining the condition in its dangerous form is slight when weighed against the risk to children. |
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Duty Owed to a Person Off the Premises |
The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects which a reasonable inspection would reveal. |
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Rowland v. Christian |
Under this case, the court eliminated the distinction between business invitee, licensee, and trespasser, and found that the land occupier owes a duty to act as a “reasonable man” for the purposes of rendering the occupied property safe for others. |
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Natural Conditions |
A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, the recent trend may be to impose a duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner. |
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Duty Owed by Lessees and Lessors of Land |
A lessee is a land occupier and has the same liabilities that any land occupier would have. A landlord owes no duty to a person coming onto land with the consent of the lessee, with the following exceptions: 1) the lessor owes a duty if a danger exists at the start of the lease which the lessor knows or should know about and which the lessee has no reason to know about; 2) the lessor has the duty to inspect for and repair dangerous conditions, if the lessor knows the lessee will hold the land open to the public; 3) the lessor has a duty to use reasonable care to make common areas safe; 4) the lessor owes a duty to keep the premises in good repair if that is part of the lease contract; 5) the lessor owes a duty if he begins repairs and performs them unreasonably or does not finish them; 6) the lessor owes a general duty of care in some jurisdictions. |
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Breach |
The failure to perform one’s duty. |
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Res Ipsa Loquitur |
A rule of evidence which aids the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrine proceeds upon the theory that the occurrence itself speaks of negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby the defendant breached his or her duty of care. The plaintiff must prove: 1) the defendant was in complete control of the instrument that caused the harm; 2) the plaintiff is not guilty of contributory negligence; 3) the defendant is in a better position to explain what happened; and 4) injuries of this type do not normally occur absent such negligence. The literal interpretation is “the thing speaks for itself.” |
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Causation |
Proof that the defendant’s act is the actual and proximate cause of the plaintiff’s harm is required in order to establish that a defendant should be held liable for that particular harm. |
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Actual Cause or Cause in Fact |
The cause which starts, ignites or makes possible the result which follows, and which satisfies the “But For” or Substantial Factor Test. |
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“But For” Test |
Used to establish actual cause. To apply the test, the plaintiff must show that but for the defendant's act, the plaintiff would not have been injured. |
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Sine Qua Non |
Literally means “without which not.” The term relates to the “But For” Test in that if a defendant’s act is the sine qua non of a plaintiff’s harm, then the plaintiff’s harm would not have occurred in the absence of that act. |
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Applying the “But For” Test to Multiple Acts |
Where concurrent acts together produce an injury which would not have occurred but for the concurrence. Where the concurrent acts are performed by different persons, both persons are liable as concurrent tortfeasors. |
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Substantial Factor Test |
Used to establish actual cause where more than one act contributes to the plaintiff’s harm. The defendant is said to be an actual cause of the plaintiff's harm if the defendant’s act is a substantial factor in bringing the harm about. This means that the defendant's act contributed in more than a trivial degree to the plaintiff's injury. Where more than one act could have caused the injury by itself, then each actor may be held jointly and severally liable. However, where an act would not have caused the injury without the other contributing acts, liability may be apportioned between the tortfeasors. |
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Proximate Cause |
An actual cause of harm is the ? cause of that harm if: 1. the act occurs in a natural and continuous sequence of events, 2. unbroken by unforeseeable, independent, intervening acts and 3. results in the harm.
When a defendant’s act directly causes injury to the plaintiff without any intervening causes, the majority of jurisdictions hold that act to be the proximate cause of harm unless the harm is unforeseeable. However, in some jurisdictions, if the defendant’s act directly causes harm, his act is the proximate cause regardless of whether the harm was foreseeable or unforeseeable. When a dependent intervening act occurs, the chain of causation is broken only if the result of the dependent intervening act is highly unforeseeable. When an independent intervening act occurs, the chain of causation is broken unless the result of the independent act is foreseeable. |
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Thin Skull Plaintiff Rule |
Under this Rule, also called the Eggshell Plaintiff Rule, The defendant “takes his plaintiff as he finds him” in that the defendant will be liable even where his act produces an unforeseeable result if that result is due to the plaintiff’s uncommon reaction or physical defect. |
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Intervening Act |
Occurs after the defendant’s act and before the plaintiff’s injury. |
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Dependent Intervening Act |
An intervening act which would not have occurred in the absence of the original negligence. It is nearly always considered to be part of the chain of events set in motion by the original negligent act. Therefore, breaks the chain of causation only if the act was highly unforeseeable. |
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Independent Intervening Act |
An intervening act which would have occurred even in the absence of the original negligence. It breaks the chain of causation unless the act or its result was foreseeable in light of the original negligent act. |
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Superseding Cause |
An intervening act which is sufficient to prevent the defendant’s negligent act from being determined to be the proximate cause of the plaintiff’s injury. Thus relieves the defendant of liability. Generally, only an: 1. unforeseeable independent intervening act or 2. a highly unforeseeable dependent intervening act will break the chain of causation and be established as a superseding cause. |
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Damages for Negligence Actions |
In a negligence action, the plaintiff may not recover damages unless he first proves that he suffered physical harm. Once this is established, he may recover most categories of damages, except for punitive damages, which are generally not available for negligence, unless the defendant’s conduct was reckless or outrageous. |
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Negligent Infliction of Emotional Distress |
Plaintiff may recover damages if there was a physical impact to the plaintiff’s person, or If the plaintiff physically manifests emotional distress caused by either 1. the defendant’s endangerment of the plaintiff who was within the zone of danger, or 2. by the defendant’s injuring of the plaintiff’s close relative while the plaintiff was present and aware of the injury happening. |
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Contributory Negligence |
Under the minority doctrine, if the plaintiff’s failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant’s negligent action. |
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Comparative Negligence |
Modernly, the doctrine has replaced contributory negligence, so that liability is apportioned according to the relative degrees of fault of the plaintiff and defendant. In a pure comparative negligence jurisdiction like California, the plaintiff will recover some damages no matter how great his own negligence was. In partial comparative negligence jurisdictions, the plaintiff will not recover if his own negligence equals or exceeds the defendant’s. |
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Last Clear Chance Doctrine |
Doctrine limits the contributory negligence defense so that even if the plaintiff was contributorily negligent, he will be permitted to recover if the defendant had a superior opportunity to avoid the accident and failed to do so. |
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Assumption of the Risk |
Under the defense, a plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk. Such consent may be expressly created by agreement between the parties, or it may be implied by the plaintiff’s conduct. At common law, assumption of the risk is a complete bar to recovery in a negligence action. |
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Joint Tortfeasors |
Consists of two or more persons who join together to commit a tortious act.
Their status is similar to that of co-conspirators in criminal law, and each is vicariously liable for the acts done by the other in the furtherance of the common design. |
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Concurrent Tortfeasors |
Consists of two or more persons who are not acting in concert with each other but whose acts combine to produce a single indivisible injury to the plaintiff.
In some jurisdictions, joint and several liability is applied in a pure form, holding each liable for the full amount of the harm. However, a majority of jurisdictions will apportion damages by using a comparative fault system. Vicarious liability does not apply. |
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Summers v. Tice |
Case that found if there is clear evidence that: 1. two or more parties were negligent, 2. but only one could have caused an injury, and 3. if it cannot be shown which of the negligent parties caused the injury, then the burden of proof is on each defendant to show that he did not cause the injury. 4. Absent such evidence, the negligent parties may be held jointly and severally liable for the damages. |
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Successive Tortfeasors |
One whose negligence follows an initial injury and adds to, or aggravates, the existing injury. Under the rules of proximate causation, if the second tortfeasor’s negligent act did not break the chain of causation set in motion by the first tortfeasor, then the first tortfeasor can be held liable for both acts. However, if the second tortfeasor's negligent act did break the chain of proximate causation, the first tortfeasor can only be held liable for his own negligence. |
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Joint and Several Liability |
Imposed upon joint and concurrent (but not successive) tortfeasors. This means that each is responsible for the full amount of the plaintiff's injury and the full amount of a related court judgment. Judgments for the full amount may be obtained against any of the tortfeasors, but the plaintiff is not entitled to recover more than the total judgment. Thus, satisfaction from one tortfeasor will discharge the liability of the others to the plaintiff. |
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Contribution |
Relates to a claim by one concurrent tortfeasor against another concurrent tortfeasor, requesting reimbursement of the other’s proportional share of a court judgment.
It is typically used after joint and several liability has been found and one defendant has had to pay the plaintiff more than his pro rata share of the damages. |
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Indemnity |
A shifting of the liability from a defendant who is only secondarily or vicariously liable to the party who is primarily liable.
Where it applies, indemnification allows the secondarily or vicariously liable defendant who has paid a court judgment to obtain full reimbursement from the party who is primarily liable. Some jurisdictions, including California, have adopted a rule of partial indemnity on the basis of relative fault of the parties. |
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Vicarious Liability |
Under the theory, a defendant who is not charged with personal fault or wrongdoing may be held liable for the tortfeasor’s act because of the defendant’s relationship to the tortfeasor (e.g., the defendant is an employer, joint venturer, car owner, bailor, parent, etc.)
A defendant who is held vicariously liable has the right to indemnification by the tortfeasor. |
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Joint Venturers |
Similar to partners except that they share only a short, specific purpose, such as a trip or single transaction. Are generally vicariously liable for each other’s torts in furtherance of the venture. |
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Respondeat Superior |
The literal translation is “let the superior answer.” The doctrine applies in employment situations to hold the employer vicariously liable for his employee’s torts which are committed within the scope of employment. |
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Scope of Employment |
A tort is committed when the employee was acting with an intent to further his employer’s business interests, even if the employee acted indirectly or unwisely, and even if the employer forbade the employee from such an act. |
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Husband-Wife Immunity |
At common law, this immunity prevented one spouse from maintaining an action against the other. It was argued that such suits between spouses would disrupt domestic tranquility. Modernly, this immunity does not exist in most jurisdictions. |
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Parent-Child Immunity |
Traditionally this immunity has been applied so that a parent and minor child are immune from suits against each other in tort action. However, suits involving interference with property interests have been freely allowed. Many jurisdictions have abolished parent-child immunity. |
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Charitable Immunity |
This immunity traditionally prevented non-paying recipients from suing a charity. However, paying recipients could sue the charity because, as to them, it was not a charity; it was a business. Modernly, the trend is to abolish the immunity and to hold non-profit organizations liable to the same extent as any other wrongdoing defendant. |
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Governmental Immunity |
This immunity has been applied to prevent suits against a governmental entity unless that entity has consented to the suit.
A substantial number of jurisdictions have totally abolished the immunity of municipal governments, and in several states, the immunity of the state government has also been terminated. |
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Wrongful Death Statute |
Under this statute, when the defendant’s intentional or negligent act causes the death of a person, the surviving members of the decedent’s family can bring an action to recover for their loss.
At common law, no such cause of action existed for the surviving members of the decedent's family. |
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Survival Statutes |
These statutes allow a decedent’s pre-existing cause of action against another to continue after the death of the parties originally involved. At common law, the death of either party to a lawsuit prior to judgment for whatever reason, terminated all tort causes of action, except in the case of torts involving personal property. |
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Wrongful Birth |
These actions have been accepted in an increasing number of jurisdictions. They usually relate to a claim of negligence against a physician or laboratory related to the failure to supply information concerning potential birth defects or claimed negligence involved in the failure to prevent birth by contraception, abortion, vasectomy, etc. |
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Pre-Natal Injuries |
At common law, these injuries could not be the basis of a suit by a child against a tortfeasor. It is now generally held that the child, if born alive, should not be denied a cause of action merely because the injury occurred prior to birth.
However, in some jurisdictions, the child must have been viable at the time of the injury, that is, capable of living independently of the mother. |
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Statute of Limitations for Personal Injury |
If not otherwise specified, the statute of limitations for personal injury is two years, and it begins to run at the time of injury or discovery of the injury. |
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Strict Liability |
Liability without fault. It is imposed against a defendant even though the defendant has done nothing intentionally wrong and has not acted unreasonably under the circumstances. Such liability is imposed, traditionally, for 1. the keeping of dangerous animals, and 2. the carrying on of abnormally dangerous activities. |
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Rylands v. Fletcher |
Under the landmark English case, one who brings something onto his land which is non-natural and likely to cause injury if it escapes, is strictly liable for all damages resulting from an escape. |
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Products Liability |
Under tort law, a manufacturer or seller who releases an unreasonably dangerous product into the stream of commerce is liable for harm caused by the product. In order to recover, it must be proved that the product was 1. defective in design, 2. manufacture, or 3. warning, and one of four separate and distinct theories of liability must be asserted: 1. intentional, 2. negligence, 3. breach of warranty, or 4. strict liability. |
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Design Defect |
The product was produced as intended by the manufacturer, but because of its design, the product creates an unreasonable danger to consumers. However, a defense may exist where the product is unavoidably unsafe and its benefits outweigh its dangers. |
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Manufacture Defect |
The product was not made as intended. Instead, due to an error in the production of the particular item at issue, the product is aberrant. Note that other products of the same type may not be defective. |
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Warning Defect |
Design and production are as intended, but the product poses a danger that is not apparent to the reasonable customer. |
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Products Liability (Intentional) |
To recover, the plaintiff must prove that the manufacturer, distributor, or supplier knew the product would cause harm at the time the product was released into the stream of commerce. |
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Products Liability (Negligence) |
To recover, the plaintiff must prove duty, breach, causation, and damages. A duty of care originally extended only to those in privity of contract, but under McPherson v. Buick, the duty was extended to all foreseeable users. To establish breach, the plaintiff must show that the product failed to meet ordinary commercial expectations. Damages are limited to personal and property. |
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MacPherson v. Buick |
In the landmark case Justice Cardozo dispensed with the previously applied requirement of privity of contract in products liability cases and extended the manufacturer's duty of care to include the ultimate consumer of the product, whether or not the consumer was the actual purchaser of the product. Later cases extended the duty to include not just the purchaser or the ultimate consumer, but to include all persons and property likely to be endangered by the product's probable use, such as the consumer's family or guests, or even near bystanders. |
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Products Liability (Breach of Warranty) |
Liability can be imposed against the manufacturer or seller of a product based upon the buyer's reliance upon an express or implied warranty that the goods are 1. of merchantable quality or 2. are fit for their intended purpose. |
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Products Liability (Strict Liability) |
This liability may be imposed against a manufacturer or seller of a product which is: defective and thereby unsafe for its anticipated use, or for failure to warn the consumer of an inherent danger involved in the use of the product when put to an intended or foreseeable use. To prevail, the plaintiff must prove: 1) manufacture or sale of the product was by defendant, 2) the product was defective, 3) the product and its defective aspects were the actual and proximate cause of the plaintiff’s injuries, and 4) the defect existed at the time the product left the defendant’s hands. |
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Damages in Products Liability |
Property damage is a. recoverable under negligence and strict liability in tort, but b. not under breach of warranty in some jurisdictions unless there was accompanying personal injury. Intangible economic harm is a. not recoverable under negligence or strict liability in tort theory, unless the intangible economic harm is combined with personal or property injury. b. is recoverable by a direct purchaser who is suing for breach of warranty, including consequential damages and lost profits. However, intangible economic harm is not recoverable by a remote purchaser or a non-purchaser suing for breach of warranty. |
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Intentional Misrepresentation |
In order to recover the plaintiff must prove that: 1. the defendant made a false statement of material fact 2. with scienter and 3. with an intent to induce the plaintiff’s reliance, and 4. that the plaintiff justifiably relied, 5. causing the plaintiff damage. |
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Negligent Misrepresentation |
In order to recover the plaintiff must prove that: 1. the defendant breached his duty to exercise due care in acquiring and transmitting information, and 2. made a false statement of material fact, 3. with an intent to induce the plaintiff’s reliance, and 4. that the plaintiff justifiably relied, 5. causing the plaintiff damage. |
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Out of Pocket Damages (Misrepresentation): |
Usually considered to be the same thing as special damages since they are pecuniary in nature. However, in an action for misrepresentation, these damages are calculated by comparing the difference between what the plaintiff paid, to the value of what the plaintiff received. |
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Loss of the Benefit of the Bargain Theory (Misrepresentation) |
Under this Theory, special damages for misrepresentation are calculated by considering the value received by the plaintiff as compared to the value that the defendant stated the plaintiff would receive. |
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Defamation |
1. a false and defamatory statement, 2. published intentionally or negligently 3. to a third person, 4. that the third person understood applied to the plaintiff, and 5. which caused damage to the plaintiff.
In order to recover damages, in addition to proving each element of defamation, the plaintiff is required to show that he or she has made a demand for a retraction from the defendant that would be given equal publicity, and the plaintiff must show that the defendant has refused to give the retraction. |
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Defamatory |
A statement that holds one up to hatred, contempt, disgrace, ridicule, or causes shunning or damage in occupation. |
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Slander |
Defamation that is published through the spoken word, requires proof of special pecuniary damages that flow directly from the defamation. Once these are proved, general damages are recoverable. |
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Slander Per Se: |
Results from a slanderous statement that is sufficiently serious to allow the plaintiff to recover without proof of special damages. The slanderous statement must allege: 1. criminal behavior, 2. loathsome disease, 3. unchastity, or 4. improper business practices. |
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Libel |
Written defamation. |
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Libel Per Se |
A written statement which is clearly defamatory on its face, meaning that inducement and innuendo are not needed to establish the fact that the statement is defamatory. Proof of special damages is not required, and general damages are presumed. |
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Libel Per Quod |
Written defamation not defamatory on its face but is defamatory only when viewed in light of outside circumstances, meaning that the inducement and innuendo are needed to establish the defamation. Requires proof of special damages in some jurisdictions. |
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Colloquium |
The offer of extrinsic evidence to explain the defamatory sense of the defendant’s statement, and is included in a complaint when a statement is not defamatory on its face. |
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Inducement |
The extrinsic facts necessary to understand the defamation. |
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Innuendo |
Innuendo is the connection between the inducement and the defamation which explains why the statement is defamatory. |
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Special Damages for Defamation |
In the law of defamation, these damages are those of a pecuniary nature, such as loss of a job or loss of customers or business. |
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Absolute Privilege |
Under this the defendant has complete immunity from liability for defamation, even if he defames maliciously, knowing the statements to be untrue. Absolute privileges exist for statements: 1) during judicial proceedings, 2) during legislative proceedings, 3) during executive government functions which are official statements of government officials, or 4) between husband and wife. |
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Qualified Privilege |
Under this privilege, the defendant has immunity from liability for defamation if he is acting for the following socially desirable purposes: 1) to protect the defendant’s own interests 2) to protect the interest of others 3) to protect a common interest 4) to protect a public interest 5) to offer an opinion within the Fair Comment Privilege A qualified immunity can be lost if the statement was irrelevant, made with malice, with a bad faith belief, or if it was excessively publicized. |
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Fair Comment Privilege |
A common law rule derived from the First Amendment rights of free speech and free press. The privilege applies to statements of opinion which have been made in good faith on matters of public interest. Covered by this privilege are opinions about newsworthy persons, events, products, art, works, etc. |
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New York Times v. Sullivan: |
Under this case, the U.S. Supreme Court held that a public official cannot recover damages for defamation bearing upon his or her qualifications for a position unless he or she can prove by clear and convincing evidence that the statement was made with actual malice. Later cases extended the rule to public figures. |
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Actual Malice in Defamation |
The publication of the defamation was made with either knowledge that the statement was false, or with reckless disregard of whether or not it was true. |
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Gertz v. Robert Welch, Inc. |
Under this case, a person does not become a public figure just because he is involved in a controversy which is heavily covered by the media. Public figures are those who “usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” |
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Malicious Prosecution |
A cause of action against a defendant who previously filed criminal or civil proceedings against the plaintiff without probable cause and with malice. The original proceeding must have ended in favor of the party who is now suing for malicious prosecution. |
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Abuse of Process |
Under tort law, a person is liable for this if he previously initiated a legal proceeding against the plaintiff, with an ulterior motive, and for an improper purpose. |
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Disparagement |
or trade libel, is the publication of an untrue or misleading statement about another’s business or product in an attempt to influence a person not to deal with the business. |
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Interference With an Economic Relationship |
A broad cause of action alleging an intentional interference with one's business relationships. Included are interferences with contractual relationships, expected commercial relationships, and intimidation of employees, clients, etc. To prevail, the plaintiff must prove 1. that the defendant intentionally and unlawfully interfered with the plaintiff’s business or enterprise, and 2. that the defendant’s act resulted in commercial or economic harm to the plaintiff. |
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Interference With Contractual Relationship |
One of the common forms of the tort of Interference with Economic Relationship. This tort is narrower in scope and requires the presence of a contract between the plaintiff and a third party, and an intentional inducement to breach that contract by the defendant, resulting in damages to the plaintiff. |
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Interference With a Prospective Advantage |
A form of Interference with Economic Relationship. The difference between this tort and Interference with Contractual Relationship is that there is no contract required to prevail in an action for Interference with a Prospective Advantage. The plaintiff need only prove that 1. there was a current or potential business relationship about which the defendant had knowledge, and 2. that the defendant intentionally disrupted that relationship, 3. causing economic harm to the plaintiff. |
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Private Nuisance |
An act by the defendant which unreasonably interferes with the plaintiff's use or enjoyment of his or her property. |
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Public Nuisance |
Results from an act or conduct by the defendant which is injurious to the public in general. |
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Invasion of Privacy |
The violation of one's right to be let alone.
One of four theories must be charged: 1. appropriation of likeness, 2. intrusion upon seclusion, 3. public disclosure of private facts, or 4. false light. |
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Appropriation of Likeness |
The defendant has committed an invasion of privacy through the unauthorized use of the plaintiff’s name or likeness.
Most commonly, the suit arises from the use of the plaintiff’s name or likeness to promote a business or product, however most jurisdictions do not require a commercial use. |
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Intrusion upon Seclusion |
The defendant has committed an invasion of privacy through an intentional and unreasonable interference with the plaintiff’s private affairs or an invasion of a location in which the plaintiff has a reasonable expectation of privacy. |
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Public Disclosure of Private Facts |
The defendant has committed an invasion of privacy through the publication of information relating to the plaintiff which is not of legitimate concern to public, in a way that would be highly offensive to a reasonable person. |
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False Light |
The defendant has committed an invasion of privacy through the publication to the public of offensive, untruthful or misleading information about the plaintiff. In California, where the publication involves a false statement, an action is brought for defamation; where the publication involves a false implication, an action is brought for false light. Not recognized by some states and in these states, the plaintiff must prove defamation to recover damages. |
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Special Damages |
Damages that are pecuniary in nature and related to specific costs incurred due to the particular circumstances involved in the tort. Must be specifically claimed and proved. Examples are lost wages, medical expenses and other “out of pocket” losses. |
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General Damages |
Non-pecuniary damages in nature and are presumed by the law to be incurred based upon the commission of the tort. Need not be specifically claimed and proved. Examples are pain, suffering and inconvenience. |
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Punitive or Exemplary Damages |
Damages awarded to the plaintiff for the purpose of punishing the defendant for malicious or reckless conduct.
The intent is to make an “example” of the defendant's conduct so that such conduct will not be repeated. |
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Loss of Consortium |
Damages for the loss of the benefits that one spouse is entitled to receive from the other spouse, including companionship, cooperation, aid, affection, and sexual relations. In a minority of jurisdictions, also available related to the loss of a child. |
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Doctrine of Avoidable Consequences |
Under the Doctrine, a plaintiff must act reasonably to mitigate his or her damages.
If the plaintiff fails to act reasonably to minimize his loss or injury, the amount of damages he or she recovers may be reduced. |
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Collateral Source Rule |
Under the Rule, if a third party provides benefits or reimbursement to the plaintiff for losses caused by the defendant, no evidence of the money or benefits from the collateral source may be introduced by the defendant to try to diminish the amount of damages he owes to the plaintiff. |
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Nonfeasance |
An omission to act to prevent injury, does not give rise to tort liability unless there is a special relationship or special circumstance which creates an affirmative duty requiring the defendant to act to protect the plaintiff. (family, co-venturer, parent/child, husband/wife, D caused P to be in danger, D has begun assistance, innkeeper, common carriers, duty to control others) |
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Lessee |
a person who takes temporary possession of a lessor's property interest through a lease. If the property is real estate, the lessee is referred to as a tenant. |
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Lessor |
The owner of property who contracts with another, the lessee, to allow them to take temporary possession of their property through a lease. If the property is real estate, the lessee is referred to as a landlord. |
